Competition Law – Multidisciplinary Case Studies Important Questions

Competition Law – Multidisciplinary Case Studies Important Questions

Question 1.
(i) An arrangement has been made among the Cotton producers that the cotton produced by them will not be sold to mills below a certain price. The arrangement was in writing but it was not intended to be enforced by legal proceeding. Examine whether the above arrangement can be considered as an agreement within the meaning of Sec. 2(b) of the Competition Act 2002.

(ii) The Central Government has formed the opinion that Mr. CBM (A member of the competition commission of India) has abused his position which may be prejudicial to public interest as a member of the commission. Examine the powers of the Central Government in this regard.
Answer:
Provision;
As per Sec. 2(b) of the Competition Act, 2002, ‘agreement’ includes any arrangement or understanding or action in concert

  • whether or not, such arrangement, understanding or action is formal or in writing; or
  • whether or not such arrangement, understanding or action is intended to be enforceable by legal proceedings.

Present Case :
In the given case, the understanding reached among the manufacturers of cotton to control the price of cotton shall amount to an ‘agreement’ as defined u/s Sec. 2(b) although such an understanding is in writing but not intended to be enforced by legal proceedings.

(ii) Provision:
Sec. 11 (2) of the Competition Act, 2002, empowers the CG to remove the chairperson or any member of the CCI in certain cases. One of the ground mentioned in Sec. 11 (2) is ‘where he has so abused his position as to render his continuance in office prejudicial to the public interest as a member’. However the member may be removed only if, on a reference made by the CG, the Supreme Court has conducted an enquiry and reported that the member ought to be removed on such grounds.

Present Case:
Accordingly in the given case the CG has power to remove Mr. CBM.

However following procedure should be adopted :

  • The CG shall make a reference to Supreme Court.
  • The Supreme CcuT shall order to hold an enquiry.
  • The enquiry shall be held in accordance with the procedure prescribed by the Supreme Court.
  • The Supreme Court may then order for removal of the member.

Question 2.
(i) In a proceeding before the Competition Commission of India involving two Pharmaceutical companies, the plaintiff requested the presiding officer to call upon the services of experts from the pharmaceutical sector to determine the truth of the allegations levelled by it against the respondent. The respondent opposed the request on the ground that such action cannot be taken by the Competition Commission. You are required to state with reference to the provisions of the Competition Act, 2002, whether the contention of the respondent is tenable.

(ii) The Central Government has formed as opinion that Mr. CBM (a member of the Competition Commission of India) has acquired such financial interest that it may affect prejudicially his functions as a member of the Competition Commission and it wants to remove him from his office. You are required to state with reference to the provisions of the Competition Act, 2002, whether the Central Government can do so and if yes, how ?
Answer:
Provision:
Sec. 36 (3) of the Competition Act, 2002 empowers the Commission to call upon the experts from the fields of economics, commerce, accountant, international trade or from any other discipline to assist the Commission in the conduct of any inquiry before it. As per Regulation 54 of the Competition Commission General Regulations, 2004, made by the Commission u/s 14 of Competition Act, 2002, it may draw up a panel of such experts.

Present Case:
Therefore, in the given case, the contention of the respondent is not correct. The Commission has the power to call upon the services of experts from the pharmaceutical sector to determine the truth of the allegations levelled by the Plaintiff against the respondent.

(ii) Provision:
Please refer 2007 – Nov [2] {C} (c) (ii) on page no. 321 Present Case :

In the given case, the Central Government has the power to remove Mr. CBM. However, following procedure must be adopted for his removal:

  • The CG shall make a reference to Supreme Court.
  • The Supreme Court shall order to hold an enquiry.
  • The enquiry shall be held in accordance with the procedure prescribed by the Supreme Court.
  • The Supreme Court may then order for removal of the member.

Question 3.
Vasudha Foot wear Ltd. is of the view that XYZ Co. Ltd., is abusing its dominant position in the footwear industry. It wishes to lodge a compliant against XYZ Co. Ltd., before the Competition Commission. Briefly elucidate the factors which the commission will consider to ascertain whether XYZ Co. Ltd., is enjoying a dominant position in the footwear industry.
Answer:
Dominant position of an enterprise: The Competition Commission while inquiring whether the enterprise XYZ Company enjoys a dominant position or not under Section 4 of the Competition Act, 2002 will take the following factors into account:

  1. market share of the enterprise;
  2. size and resource of the enterprise;
  3. size and importance of the competitors;
  4. economic power of the enterprise including commercial advantages over competitors.
  5. Vertical integration of the enterprises or sale or service net work of such enterprises.
  6. Dependence of .consumers on the enterprises.
  7. Monopoly or dominant Dosition whether acquired as result of any statute or by virtue of being a Government company or a public sector undertaking or otherwise.
  8. Entry barriers including barriers such as regulatory barriers, financial risk, high capital cost of entty, marketing entry barriers, technical entry barriers, economies of scale, high cost of substitutable goods or services for consumers.
  9. Countervailing buying power.
  10. Market structure and size of market.
  11. Social obligations and size of market.
  12. Relative advantage, by way of contribution to the economic development, by the enterprise enjoying a dominant positive having or likely to have an appreciable adverse effect on competition.
  13. Any other factor which the commission may consider relevant for the inquiry.

Question 4.
Mr. Raj Behari retired as a Member of Competition Commission of India (CCI) on 31st October, 2008. He was offered the post of Chief Executive in M/s. LSD Ltd. which was earlier a party in the proceedings before CCI. Can he join the company with effect from 1st November, 2009?
What will be the position if Mr. Raj Behari joins Oil & Natural Gas Commission Ltd., a Government Company with effect from 1st April, 2009? ONGC was also earlier a party in the proceedings before CCI.
Answer:
Provision : According to Sec. 12, of the Competition Act, 2002 the Chairperson and other Members shall not, for a period of two years from the date on which they cease to hold office, accept any employment in or be connected with the management or administration of any enterprise which has been a party to a proceeding before the Commission under this Act.

However, nothing contained in this section shall apply to any employment under the Central Government or a State Government or local authority or in any statutory authority or any corporation established by or under any Central, State or Provincial Act or a Government Company as defined in Sec.2(45) of the Companies Act, 2013.

Present case :
(i) In the present case, HLL Ltd. is an enterprise which has been a party to any proceeding before the Commission. Mr. MKP ceased to be a member on 31st March, 2007. Therefore, Mr. MKP cannot join HLL Ltd. upto 31st March, 2007 (i.e. upto 2 years of cessation of his office of member).

(ii) LIC is a corporation established by a Central Act, and so the restriction on employment of Chairman or a Member shall not apply where appointment is made in LIC. Therefore, Mr. MKP can join LIC.

Present Case :
In the present case, M/s LSD Ltd. is an enterprise which has been a party to any proceeding before the Commission. Therefore, Mr. Raj Behari cannot join M /s LSD Ltd. upto 31st October, 2010 (i.e., upto two years of cessation of his office of member).

Oil & Natural Gas Commission Ltd. is a Government company as defined in Sec. 2(45) of the Companies Act, 2013 and so the restriction on employment of Chairman or a Member shall not apply where appointment is made in Oil & Natural Gas Commission Ltd. Therefore, Mr. Raj Behari can join Oil & Natural Gas Commission Ltd. W.e.f 1st April, 2009.

Question 5.
The Central Government on the recommendation of selection committee appoints Mr. Ramesh aged 56 years as Member of the Competition Commission of India to be effective from 1st January, 2010. State with reference to the provisions of Competition Act, 2002 the term for which he will be appointed and whether he can be reappointed as such and also if he resigns after two years whether the vacancy can be filled up by the Chairman of the Commission.
Answer:
Terms of office of chairperson and other Members [(Sec. 10(1) of the Competition Act, 2002)] –

  • The chairperson and other members shall hold the office for a tenure of 5 years.
  • They shall also be eligible for re-appointment.
  • They shall hold the office upto the age of sixty five years.

Filling of Vacancies [Sec. 10(2)] – A Vacancy caused by :

  • resignation
  • removal
  • death or
  • otherwise

of the chairperson or any other member shall be filled by making fresh appointments in accordance with the rules framed by the Central Government in this behalf Under Sec. 9

Present Case – Keeping the above provision in mind. Mr. Ramesh can be appointed as member of the commission for a term of five years as he is aged fifty six years on 1st January, 2010. He can also be reappointed but his reappointment will be only up to the age of sixty five years. If Mr. Ramesh resigns as member after working for two years the resulting vacancy can be filled up by fresh appointment approved by the Selection Committee and the Chairman has no power to fill up the vacancy on his own.

Question 6.
Attempt:
Hon’ble Justice Mr HCJ, a retired High Court Judge, attained the age of 61 years on 31st December 2011. The Central government appointed him as the chairperson of the Competition Commission of India with effect from 1st January 2012. State, with reference to the provisions of the Competition Act, 2002, the term for which he may be appointed as chairperson of the Competition Commission of India. Whether he can be reappointed as such and till when he can remain as chairperson of the Competition Commission of India?
Answer:
Provision:
Tenure of Chairman of Competition Commission of India [Sec. 10]

  • The Chairperson and every other Member shall hold their offices for a term of five years from the date on which he was appointed.
  • The Chairperson and every other Member shall be eligible for reappointment.
  • The Chairperson or any other member shall not to hold office after he has attained the age of sixty five years.

Present Case :

  • Mr. HCJ can be appointed as Chairperson for a term of four years since at the time of appointment he has not attained the age of sixty five years.
  • Mr. HCJ is of sixty one years. On attainment of age of sixty five years, Mr. HCJ shall have to vacate the office of Chairperson, and he shall not be reappointed as Chairperson.

Question 7.
The Competition Commission has served notice on VIPUL PAINTS LTD. to look into alleged contravention of certain provisions. The company wants to object to the same on the ground that the same was consequent to a complaint made by the State Government, which is not in order. Advise the company suitably.
Answer:
If provisions of Section 3(1) or 4(1) of the Competition Act, 2002 are not followed, the Competition commission can initiate an enquiry into the matter on its own (suo moto means on its own, without any request) or on receipt of any complaint from public. It can start enquiry on contravention of Section 3(1) or 4(1) of the Competition Act, 2002 if:

  • It has received any complaint from any person, consumer, consumer association or trade association etc. Required fees should be paid with the complaint.
  • The Central Govt, or any State Govt, has asked for such enquiry.

In the present case, Vipul Paints should not object to the notice of Competition commission on the grounds that the complaint was made by State Govt. All State Governments have power to make complaint to the Commission.

Question 8.
The Central Government, without referring the matter to the Supreme Court of India for inquiry, removed a member of the Competition Commission of India on the ground that he has become physically or mentally incapable of acting as a member. Decide, under the provisions of the Competition Act, 2002, whether removal of the member by the Central Government is lawful?
Answer:
Removal of Member of CCI – As per Sec. 11 (2) of the Competition Act, 2002, the CG is empowered to remove, by an order member of the CCI from his office if such member has become physically or mentally incapable of acting as a member.

Restrictions – As per Sec. 11 (3), of the same Act the CG has to make a reference to the Supreme Court of India under the two conditions :

  • Where the member has acquired such financial or other interest as is likely to affect prejudicially his functions as a member.
  • Where a member has abused his position as to render his continuance in office prejudicial to the public interest.

Present Case – Thus, under present circumstances under Sec. 11 (2) and Sec. 11 (3), the action of CG is in order and removal of member is valid. Approval of Supreme Court is not required.

Question 9.
Bombay Textiles Limited and Gujarat Textiles Limited marketing their products in India propose to be amalgamated. The enterprise created as a result of the said amalgamation will have assets of value of three hundred crore rupees anti turnover of one thousand crore rupees. Examine whether the proposed amalgamation attracts the provisions of the Competition Act, 2002? (4 marks) [CA Final P-4 (Old Syllabus)]
Answer:
Sec. 5 deals with combination:
Revised Thresholds:
On March 4, 2016, the Central Government issued notifications pertaining to the statutory thresholds in the purposes of “combinations” under Section 5 of the Competition Act, 2002 (“Act”).
1. Increase in thresholds: Pursuant to Notification No. S.O.675(E) dated March 4, 2016, the value of assets and the value of turnover has been enhanced by 100% for the purposes of Section 5 of the Act. Accordingly, the revised thresholds for notification to the Competition Commission of India (“Commission”) are.
Competition Law – Multidisciplinary Case Studies Important Questions 1

2. Increase in thresholds of De Minimis Exemption: Pursuant to Notification NO. S.0.674(E) dated March 4,2016 acquisitions where enterprises whose control, shares, voting rights or assets are being acquired have assets of not more than ₹ 350 crores in India or turnover of not more than ₹ 1,000 crore in India, are exempt from Section 5 of the Act for a period of 5 years. Accordingly, the revised thresholds for availing of the De Minimis exemption for acquisitions are:

3. Definition of Group: As per Notification No. S.O. 673(E) dated March 4,2016, the exemption to the “group” exercising less than fifty percent, of voting rights in other enterprise from the provisions of Section 5 of the Act under Notification No. S.O. 481 (E) dated March 4, 2011, has been continued for a further period of 5 years.

Present Case:
In the present case, the proposed amalgamation of Bombay Textiles Limited and Gujarat Textiles Limited will not attract the provisions of the Competition Act, 2002 as they have assets of value of three hundred crore rupees and turnover of one thousand less than the specified under the provisions.

Question 10.
A truck manufacturing company proposes to enter into distributorship agreements requiring the dealers not to sell trucks of other manufacturers and also not to sell the trucks outside the territory assigned to them. Examine with reference to the Provisions of the Competition Act, 2002 whether the proposed agreements will be considered as Anti competitive Agreements and void in case the company entered into such agreements.
Answer:
Anti-Competitive Agreements Provision:
Under Sec. 3 of the Competition Act, 2002 any agreement amongst enterprises of persons at different stages or levels of the production chain in different markets, in respect of production, supply, distribution, storage, sale or price of, or trade in goods or provision of service, shall be a void agreement if it causes or is likely to cause an appreciable adverse effect on competition. According to the problem, there are two conditions given in the agreement, which fall under the following stages:

(i) Exclusive Supply Agreement: Includes any agreement restricting in any manner the purchaser in the course of his trade from acquiring or otherwise dealing in any goods or services other than those of the seller or any other person.

(ii) Exclusive distribution agreement: Includes any agreement to limit, restrict or withhold the output or supply of any goods or services or allocate any area or market for the disposal or sale of the goods or services.

Present Case :
In view of the above provisions of the Competition Act, 2002 validity of the clauses of the agreement as given in the question can be determined as follows:

Part (i) of the question restricts the dealer to deal in the goods of other manufacturers. This is a exclusive separate agreement u/s 3(4) of the Act. Hence, the proposed agreement is anti-competitive and void.

Part (ii) of the question restricts the dealers not to sell the goods outside the territory assigned to them. This is a Exclusive Distribution Agreement u/s 3(4) of the Act. Hence, the proposed agreement is anti competitive and void.

Question 11.
MNO Tyres Limited is in the business of manufacture of automotive tyres : for the past one year. To increase its market share, the company has decided to reduce the prices of tyres. The cost structure of the passenger car tyre is as under:

  • Cost of production five thousand rupees per tyre
  • Selling price six thousand rupees per tyre

The company started selling tyres five thousand and two hundred rupees per tyre and the other tyre manufacturers made a complaint to the Competition Commission of India stating that MNO Tyres Limited is guilty of predatory pricing having the effect of reducing the competition or eliminating the competition. Advise MNO Tyres Limited as to the meaning of predatory pricing and whether the company can be said to have indulged in the said practice having regard to the provisions of the Competition Act, 2002.
Answer: :
Provision:
Sec. 4 (2) (a) of the Competition Act, 2002 prohibits abuse of dominant position by any enterprise or group. Abuse of dominant position is ‘ considered if an enterprise or a group directly or indirectly, imposes unfair or discriminatory:

  • condition in purchase or sale of goods or services; or
  • price in purchase or sale (including predatory price) of goods, or service.

“Predatory price” means the sale of goods or provision of services, at a price which is below the cost, as may be determined by regulations, of production of the goods or provision Of services, with a view to reduce competition or ! eliminate the competitors.

Present Case:
According to the provisions given under Sec. 4(2)(a) of the Competition Act, , 2002, MNO Tyres Ltd. cannot be said to have indulged in predatory pricing as the revised selling price (five thousand and two hundred rupees per tyre) is more than its cost of production (five thousand rupees per tyre).

Question 12.
(i) The mango producers in Lucknow have entered into an arrangement among them whereby they have decided not to sell the mango below certain price. This arrangement has been made in writing but not intended to be enforced by any legal proceedings. Referring to the provisions of the Competition Act, 2002, examine whether the said arrangement shall fall within the jurisdiction of the term ‘agreement’ within the meaning of the said Act.

(ii) The coconut producers in Tirunelveli (Tamil Nadu) have formed an association to control the production of coconuts. Referring to the provisions of the Competition Act, 2002, examine whether the said association to control the production of coconuts shall fall within the jurisdiction of the term ‘Cartel’ under the provisions of the said Act.
Answer:
Provision:
As per Sec. 2 (b), ‘agreement’ includes any arrangement or understanding or action in concert.

(i) Whether or not such arrangement, understanding or action is formal or in writing or
(ii) Whether or not such arrangement or understanding or action is intended to be enforceable by legal proceedings.

Present Case:
In the give case, the understanding reached among the mango producers in Lucknow amount to an ‘agreement’ as defined under Section 2 (b) not with standing the fact that:

  • Such an understanding is not in writing and
  • Such an understanding is not intended to be enforced by legal proceedings.

Hence, mango producers in Lucknow are said to be in agreement with the meaning of said Act, if they are not intended to be enforced by legal proceedings. It is a Horizontal Anti Competitive Agreement.

(ii) Provision:
The given problem relates to Sec. 2 (c) of the Competition Act, 2002. As per Sec. 2 (c). ‘Cartel’ includes an association of producers, sellers, distributors, traders or service providers who, by agreement amongst themselves, limit, control or attempt to control the production, distribution, sale or price of or trade in goods or provision of services.

Present Case:
In the given case, the association that has been formed is falls within the definition of ‘Cartel’ as given under sec. 2 (c) of the Competition Act, 2002. Since the above conditions are satisfied coconut producers in Tirunelveli (Tamil Nadu) are said to be in term ‘Cartel’ under the provisions of the said Act.

Question 13.
(i) Shyam & Co. is engaged in the manufacture of cement. It sold the goods initially below the cost price for a year and slowly, its other competitors went out of the market. Thereafter, the enterprise changed its strategy and sold the goods above its cost price and made substantial profits. Examine the action, if any, which may lie against this enterprise under the Competition Act, 2002.

(ii) Bombay Textiles Limited and Gujarat Textiles Limited marketing their products in India propose to be amalgamated. The enterprise created as a result of the said amalgamation will have assets of value of ₹ 300 crore and turnover of ₹ 1,000 crore. Examine whether the proposed amalgamation attracts the provisions of the Competition Act, 2002.
Answer:
As per Sec. 4 of Competition Act, 2002, it is prohibited to abuse the dominant position by any enterprise or group. Where after inquiry the Commission finds that any agreement referred to in Section 3 or action of an enterprise in a dominant position, is in contravention of Sec. 3 or Section 4, as the case may be, it may pass all or any of the following orders, namely:

1. direct any enterprise or association of enterprises or person or association of persons, as the case may be involved in such agreement, or abuse of dominant position, to discontinue and not to re-enter such agreement or discontinue such abuse of dominant position, as the case may be;

2. impose such penalty, as it may deem fit which shall be not more than ten per cent of the average of the turnover for the last three preceding financial years, upon each of such person or enterprises which are parties to such agreements or abuse:

Provided that in case any agreement referred to in section 3 has been entered into by a cartel, the Commission may impose upon each producer, seller, distributor, trader or service provider included in that cartel, a penalty of up to three times of its profit for each year of the continuance of such agreement or ten per cent of its turnover for each year of the continuance of such agreement, whichever is higher;

3. direct that the agreements shall stand modified to the extent and in the manner as may be specified in the order by the Commission;

4. direct the enterprises concerned to abide by such other orders as the Commission may pass and comply with the directions, including payment of costs, if any;

5. pass such other order or issue such directions as it may deem fit: Provided that while passing order under this section, if the Commission comes to a finding, that an enterprise in contravention to section 3 or section 4 of the Act is a member of a group as defined in clause (b) of the Explanation to section 5 of the Act, and other members of such a group are also responsible for, or have contributed to, such a contravention, then it may pass orders, under this section, against such members of the group.

Present Case:
In the given instance, Shyam and Co. abused its dominant position by imposing predatory price of goods. Action against this enterprise shall lie in Sec 27 of the Competition Act, 2002.

(ii) Section 5 deals with combination of enterprises and persons. The amalgamation of enterprises shall be a combination of such enterprises if the enterprise created as a result of the amalgamation, as the case may be, have either in India, the assets of the value of more than ₹ 1,500 crores or turnover more than ₹ 4,500 crores.

Therefore, in the above case the proposed amalgamation of Bombay Textiles Limited and Gujarat Textiles Limited will not attract the provisions of the Competition Act, 2002 as they have assets of value of ₹ 300 crore and turnover of ₹ 1,000 crore which are less than specified under the provisions.

Question 14.
CTVN and Channel 10 telecasted Mahabharat TV serial in dubbed form in Bangla language in the State of West Bengal. The co¬ordination committee comprising film and TV entities in the State banned the telecast of the dubbed version of the serial contending that it was affecting the TV and film industry of the State.
CTVN and Channel 10 intend to contest the ban before the Competition Commission of India.
Discuss whether:
(i) Activities in which the co-ordination committee indulged can be treated as ‘agreement’ for the purposes of section 3 of the Competition Act, 2002 and the Co-ordination Committee would be covered by the definition of ‘person’ under 2(l) of the Act?

(ii) The act of banning of the TV serial amounts to violation of the provisions of section 3(3)(b) of the Competition Act, 2002?
Answer:
(i) The given case is similar to the case of Competition Commission of India v. Co-ordination Committee of Artists and Technicians of W.B. Film and Television & Ors [SC], Civil Appeal No. 6691 of 2014 [Decided on 07/03/2017].

An agreement referred to in Section 3 of the Competition Act, 2002 has to relate to an economic activity which is central to the competition law. Economic activity refers to any activity consisting of offering products in a market regardless of whether the activities are intended to earn a profit. The “agreement” or “concerned practice” is the means through which enterprise or association of enterprises or person or association of persons restrict competition.

The functional approach and the corresponding focus on the activity, rather than the form of the entity may result in an entity being construed an enterprise when it engages in some activities, but when it engages in others. Non-profit making organizations or public bodies may of turn operate in their charitable or public activity but may be construed an undertaking when they engage in commercial activities. Coordination Committee, which is engaged in activities which are not charitable. It is engaged in economic activities on behalf of the film and TV artists. In action in banning the dubbed TV serial amounts to an “infringement” under the Competition Act, 2002.

The Commission Committee, which may be a “person” as per Section 2(1) of the Competition Act. 2002. is not undertaking any economic activity by itself. But the Commission Committee is an association of enterprises (constituent members) and these members are engaged in production, distributions, and exhibition of films. Thus the Commission Committee amounts to an “enterprise” or the kind of ‘association of persons’ as per the Section 3 of the Act.

(ii) The act of the Commission Committee deprives the consumers of exercising their choice. Its act definitely caused harm to consumers by depriving them from watching the dubbed serial on TV channel. It also hindered competition in the market by barring dubbed TV serials from exhibition on TV channels in the State. Such acts or conduct also limit supply of serial clubbed in Bangla which amounts to violation of the provisions of Section 3(3)(b) of the Competition Act, 2002.

Question 15.
‘Q Cars’ was a radio taxi service provider, which was offering customer discounts and royalty programmes, etc., M group was a competitor-who alleged that owing to its dominant position, ‘Q Cars’ group has devised certain abusive practices which inter alia include unreasonable discounts amounting to abysmally low/predatory pricing to consumers etc., to adversely affect and oust its competitor from the relevant market.

It was also alleged that under its business arrangement, ‘Q Cars’ was giving whole trip-amount received from the passengers to the respective taxi drivers along with additional incentives in order to get them attached exclusively with the ‘Q Cars’ network. It also alleged that ‘Q Cars’ enters into exclusive contracts with taxi owners in violation of provisions of Competition Act, 2002, whereby the taxi drivers are restrained from getting attached on to any other competing ‘radio taxi operator’ network. Has ‘Q Cars’ contravened the provisions of the Competition Act, 2002?
Answer:
The present case is similar to the case of Meru Travel Solutions Pvt Ltd v. Uber India Systems Pvt. Ltd & Ors [CCI] Case No. 96 of 2015 [Decided on 10/02/2016] wherein the Competition Commission of India held that the definition of relevant geographic market in the radio taxi services market has been dealt with by the Commission in many previous cases. The Commission was of the view that the relevant geographic market in that case would be “Delhi”.

The Commission held – “It has considered the TechSci research report and it is a matter of fact that Uber Group was not interviewed during the collection of data in the TechSci report. Evidently, there are glaring differences in the data and results depicted by the two research reports i.e. research report and TechSci report; casting a serious doubt on their authenticity and neutrality. The conflicting results indicate that either the data relied upon in the said reports is not accurate or the data has been selectively collected and relied upon to reach some predetermined results.

Therefore, despite the Informant’s attempt to discredit the results of the research report, the Commission is apprehensive in drawing conclusions with regard to the market share of UBER on the basis of such contradictory research reports. Hence, despite the deficiencies observed above, a conclusion may be drawn from a combined reading of both these research reports that there exists stiff competition, at least between OLA and UBER, with regard to the radio taxi industry in Delhi. Further, both the research reports have acknowledged the presence of other major players in the market, apart from UBER and OLA. Further, the fluctuating market share figures of the various players show that the competitive landscape in the relevant market is quite vibrant and dynamic.

Based on the foregoing discussion, the Commission is of the view that the radio taxi services market in Delhi is competitive in nature and UBER does not appear to be holding a dominant position in the relevant market. Since Uber group does not seem to be dominant in the relevant market, there is no need to go into the examination of its conduct in such relevant market.

Based on the aforesaid, the Commission is of the view that no case of contravention is made out against Uber Group.” Applying the conclusion of the above case, it can be concluded that ‘Q Cars’ has not contravened the provisions of Competition Act, 2002.

Questions:

  • Whether the Appellant is in order requesting the CCI of recall the investigation?
  • Whether CCI has enherent powers to recall/review its investigation orders in exercise of powers u/s 26(1) of the Act?
  • Whether any provision of the Act indicates that an order u/s 26(1) cannot be reviewed or recalled?
  • Whether writ petition filed against CCI order directing investigation is maintainable?

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