Relevant product market - relevant geographic market - dominant position - abuse of dominant position - unfair conditions - section 4(2)(a)(i) of the Act - force majeure - minimum guaranteed off-take (MGO) - billing and payment clauses - cease and desist - modification of agreements - penalty under section 27(b)Relevant product market - relevant geographic market - The relevant market is the supply and distribution of natural gas to industrial consumers in district Faridabad. - HELD THAT: - The Commission accepted the DG's segmentation of consumers and analysis of end use, price and technical differences across consumer categories, finding natural gas distinct from other fuels for the purposes of industrial consumers. Given the statutory authorization regime and exclusivity conferred by PNGRB/State authorisation in District Faridabad, the conditions of competition are geographically homogeneous and Faridabad constitutes the relevant geographic market. The Commission therefore adopts the relevant market as supply and distribution of natural gas to industrial consumers in district Faridabad. [Paras 58, 61, 62]Relevant market held to be supply and distribution of natural gas to industrial consumers in district Faridabad.Dominant position - entry barriers - market share - The opposite party (AGL) is in a dominant position in the defined relevant market. - HELD THAT: - Applying Explanation (a) to section 4 and the factors in section 19(4), the Commission noted that AGL is the sole authorised entity in the defined geographic market and effectively enjoys 100% market share. Regulatory exclusivity, absence of countervailing buying power, market structure and entry barriers arising from authorisation and the nature of CGD infrastructure support the conclusion that AGL can operate independently of competitive forces and affect the market in its favour. [Paras 67, 68]AGL held to be dominant in the market of supply and distribution of natural gas to industrial consumers in Faridabad.Abuse of dominant position - unfair conditions - billing and payment clauses - force majeure - minimum guaranteed off-take (MGO) - modification of agreements - cease and desist - penalty under section 27(b) - Certain clauses of AGL's Gas Sales Agreement impose unfair conditions in contravention of section 4(2)(a)(i) of the Competition Act and AGL must cease the impugned conduct and modify the GSAs; penalty is imposed under section 27(b). - HELD THAT: - The Commission examined the GSA clause by clause and upheld the DG's and its own findings that specific provisions impose unfair conditions: (i) sub clause 13.5 (allowing interest at 'any such rates as may be decided by the Seller in future') and sub clause 13.7 (no obligation on Seller to pay interest on excess amounts paid) are unfair and contravene section 4(2)(a)(i); (ii) clause 17.4 (seller's right to terminate if buyer fails to offtake 50% of cumulative DCQ during 45 consecutive days) is unfair given the disparity with the longer period available to AGL from its supplier; (iii) sub clause 16.3 (seller's sole discretion to accept/reject customer's force majeure claim) and clause 11.2.1 (buyer obliged to meet MGO even in emergency shutdown) impose unfair conditions. The Commission rejected complaints on other clauses where it found adequate contractual remedies, upstream constraints or business realities (quality/measurement, contract price revisions, payment security, and certain billing dispute mechanisms) and observed that pricing revisions in the gas industry are constrained by upstream costs and industry peculiarities. Having found contraventions limited to specific clauses, the Commission directed AGL to cease and desist from the specified conduct, to modify the GSAs in light of these findings and imposed a monetary penalty at 4% of average turnover under section 27(b), taking mitigating and aggravating circumstances into account. [Paras 82, 93, 98, 103, 105]AGL found to have imposed unfair conditions in breach of section 4(2)(a)(i); directed to cease the impugned conduct, modify GSAs, file undertaking and pay penalty fixed at 4% of average turnover.Final Conclusion: The Commission held the relevant market to be supply and distribution of natural gas to industrial consumers in Faridabad, found AGL dominant in that market, held specific GSA clauses to impose unfair conditions in contravention of section 4(2)(a)(i) and directed AGL to cease and desist, modify the agreements and pay a penalty fixed at 4% of average turnover, with ancillary directions for undertaking, modification and deposit of the penalty.

Abuse of dominant position - relevant market - relevant geographic market - assessment of dominance under the factors in section 19(4) - exploitative conduct / unilateral variation of allotment terms - closure under section 26(2) of the Competition Act, 2002Relevant market - relevant geographic market - The relevant product and geographic market for assessing the alleged abuse by the OP. - HELD THAT: - The informants booked apartments in the OP's project and the Commission treated the product market as the market for development and sale of residential apartments. Given the close proximity and substitutability between Noida and Greater Noida, the Commission held that the geographic market is 'Noida and Greater Noida'. Accordingly, the relevant market for the purpose of the allegation is the market for development and sale of residential apartments in Noida and Greater Noida. The Commission relied on the consumers' ability to substitute across these areas and the homogeneity of competitive conditions in reaching this determination. [Paras 7, 8]Relevant market determined as the market for development and sale of residential apartments in Noida and Greater Noida.Assessment of dominance under the factors in section 19(4) - abuse of dominant position - exploitative conduct / unilateral variation of allotment terms - closure under section 26(2) of the Competition Act, 2002 - Whether the OP held a dominant position in the relevant market and whether the information alleging abuse of dominance warranted an inquiry or closure under section 26(2). - HELD THAT: - The Commission observed that dominance must be assessed with reference to the state of competition in the relevant market and by applying the factors set out in section 19(4) of the Act; it rejected the informants' submission that dominance could be inferred solely from the locked-in position of individual consumers or from alleged exploitative conduct. The OP had only one project in the relevant market and publicly available information showed several other established developers operating in the market; there appeared to be no entry barriers or buyer dependence on the OP. On the material before it, the Commission concluded prima facie that the OP did not hold a dominant position in the defined relevant market. Consequently, the alleged unilateral changes in allotment terms and higher interest rates did not establish abuse within section 4 on the present record. In view of this assessment, the Commission found no prima facie case of abuse of dominance and directed closure of the matter under section 26(2). [Paras 9, 10, 11]No prima facie dominance or abuse established; information closed under section 26(2) of the Act.Final Conclusion: The Commission defined the relevant market as development and sale of residential apartments in Noida and Greater Noida, held that dominance must be assessed by reference to market-wide factors in section 19(4), found no prima facie dominance or abuse by the OP on the material before it, and consequently closed the information under section 26(2) of the Competition Act, 2002.

Development and sale of residential apartments - Relevant geographic market - Gurgaon - Dominant position - Abuse of dominant position - Section 4 of the Competition Act, 2002 - prohibition of abuse of dominant position - Section 26(2) - closure of information for no prima facie caseDevelopment and sale of residential apartments - Relevant geographic market - Gurgaon - The relevant product market and the relevant geographic market were determined. - HELD THAT: - The Commission treated the relevant product market as the market for development and sale of residential apartments. The geographic market proposed by the informant (Gurgaon and Faridabad) was rejected on the basis that consumers seeking residential units in Gurgaon would not necessarily consider Faridabad interchangeable. Applying prior Commission approaches to geographic delineation, the Commission confined the geographic market to Gurgaon and held the relevant market to be the market for development and sale of residential apartments in Gurgaon. [Paras 10]Relevant market defined as development and sale of residential apartments in Gurgaon.Dominant position - Abuse of dominant position - Section 4 of the Competition Act, 2002 - prohibition of abuse of dominant position - Section 26(2) - closure of information for no prima facie case - Whether the opposite parties held a dominant position in the relevant market and whether a prima facie case of abuse under Section 4 was made out. - HELD THAT: - The Commission examined the position of the opposite parties in the defined market and, having regard to the factors in section 19(4) of the Act, concluded that the opposite parties were not dominant. The Commission noted the presence of several other sizeable developers operating in Gurgaon and compared land-bank and resources, finding that the OPs did not possess such size, resources or advantage as to act independently of competitors. Because dominance was not established, the Commission declined to examine alleged abusive conduct; without dominance there could be no contravention of Section 4. On this basis the Commission found no prima facie case and ordered closure of the information under Section 26(2). [Paras 11, 12, 13]No prima facie case of dominance or abuse under Section 4; information closed under Section 26(2).Final Conclusion: The Commission defined the relevant market as development and sale of residential apartments in Gurgaon, held that the opposite parties were not dominant in that market, and, as no prima facie case under Section 4 was made out, closed the information under Section 26(2) of the Competition Act, 2002.

Prima facie case under Section 3 (anti-competitive agreements) - prima facie case under Section 4 (abuse of dominant position) - definition of "enterprise" under Section 2(h) - accreditation as an incentive to improve quality and not an anti-competitive instrumentDefinition of "enterprise" under Section 2(h) - prima facie case under Section 4 (abuse of dominant position) - Whether the Opposite Parties, particularly DGHS and the other government or quasi governmental bodies, can be treated as an "enterprise" and whether a prima facie case under Section 4 is made out. - HELD THAT: - The Commission held that DGHS, ECHS, Quality Council of India and NABH are not engaged in direct economic or commercial activities and therefore do not fall within the definition of "enterprise" under Section 2(h). Their roles are regulatory, promotional or administrative (DGHS controls/regulates health care; ECHS is a government financed scheme; Quality Council/NABH operate accreditation programmes). Since the entities are not enterprises, the provisions of Section 4 are not attracted. Further, the conduct challenged - prescribing different reimbursement rates for NABH accredited hospitals - does not, on the material before the Commission, give rise to a competition concern; rather it operates as an incentive for quality improvement and patient safety and cannot be characterised as abuse of dominance. On these bases no prima facie case under Section 4 is made out and investigation is not warranted. [Paras 8, 9, 10, 12]No prima facie case under Section 4; the Opposite Parties are not "enterprises" under Section 2(h) and Section 4 is not attracted.Prima facie case under Section 3 (anti-competitive agreements) - Whether the Opposite Parties have entered into any agreement or cartel in contravention of Section 3 so as to merit a prima facie finding and an investigation. - HELD THAT: - The Informant alleged collusion to benefit NABH accredited hospitals by prescribing higher reimbursement rates. The Commission found that the Informant did not produce cogent evidence of any agreement or concerted practice between the Opposite Parties. Absent material establishing the existence of an agreement or collusive arrangement, the statutory test for prima facie satisfaction under Section 3 is not met. Consequently, there is no basis to proceed with an investigation under Section 26(1). [Paras 11, 12]No prima facie case under Section 3; insufficient evidence of any agreement or cartel.Final Conclusion: The Commission concluded that no prima facie case under Section 3 or Section 4 of the Competition Act, 2002 is made out against the Opposite Parties and accordingly closed the proceedings under Section 26(2) of the Act.

Relevant market for services of development and sale of commercial space in Gurgaon - Relevant product market: services of development and sale of commercial space - Relevant geographic market: Gurgaon - Prima facie dominance of DLF Group in the relevant market - Abuse of dominant position by imposition of unfair terms and conditions - Investigation under Section 26(1) of the ActRelevant product market: services of development and sale of commercial space - Relevant geographic market: Gurgaon - Relevant market for services of development and sale of commercial space in Gurgaon - Definition of the relevant market for the purpose of examining Section 4 of the Act - HELD THAT: - The Commission examined product and geographic market definitions and concluded that the distinct service at issue is the development and sale of commercial space, which is not substitutable with residential units or plots due to unique characteristics and consumer preferences. Taking into account factors such as land availability, price differentials, rental levels, proximity to the national capital, connectivity, presence of IT/ITES firms and related infrastructure, Gurgaon constitutes a distinct geographic market. Consequently, the relevant market was defined as the market for the services of development and sale of commercial space in Gurgaon. [Paras 6, 7]The relevant market is the services of development and sale of commercial space in Gurgaon.Prima facie dominance of DLF Group in the relevant market - Whether the Opposite Party (DLF Group) is prima facie dominant in the defined relevant market - HELD THAT: - On review of documentary material including the Draft Red Herring Prospectus and project data, the Commission observed a substantial presence of the DLF Group in Gurgaon by way of existing and on-going commercial developments, large operational and leasable commercial stock (including a major integrated business district and multiple projects aggregating significant saleable and leasable area). Despite the presence of other developers, these factors led the Commission to form a prima facie view of DLF Group's dominance in the relevant market. [Paras 8, 9]Prima facie, DLF Group is dominant in the market for development and sale of commercial space in Gurgaon.Abuse of dominant position by imposition of unfair terms and conditions - Section 4(2)(a)(i) - imposition of unfair terms - Whether the Opposite Party's contractual clauses prima facie amount to abuse of dominant position under Section 4(2)(a)(i) - HELD THAT: - The Commission considered the specific clauses complained of (clauses permitting unilateral abandonment with limited refund and low/simple interest, unilateral plan alteration, asymmetric payment and delay-compensation terms, unilateral formation of owners' association, unilateral amendment of annexures, onerous forfeiture clauses, and unilateral appointment of arbitrators) and found several to be unilateral, one sided and loaded in favour of the Opposite Party. In light of the prima facie finding of dominance, such imposition of unfair terms on buyers was regarded as, prima facie, anti competitive and falling within Section 4(2)(a)(i). [Paras 10]There exists a prima facie case that the Opposite Party, emanating from its dominant position, has imposed unfair terms in contravention of Section 4(2)(a)(i).Investigation under Section 26(1) of the Act - Whether the matter should be investigated by the Director General and the scope/timing of such investigation - HELD THAT: - Having formed prima facie views on market definition, dominance and abusive conduct, the Commission held that the matter warranted a formal investigation. Pursuant to Section 26(1), the Commission directed the Director General to investigate the alleged contravention, including the role of relevant officials of the Opposite Party, and to complete the investigation within 60 days. The Commission clarified that the observations made are prima facie and do not amount to a final adjudication on merits; the DG's investigation must proceed independently. [Paras 11, 12, 13]Directed investigation by the Director General into the alleged contravention and the role of responsible officials, to be completed within 60 days; observations are prima facie only and not final.Final Conclusion: The Commission defined the relevant market as the services of development and sale of commercial space in Gurgaon, formed a prima facie view that DLF Group is dominant in that market, and concluded prima facie that several contractual clauses are unilateral and unfair thereby amounting to an alleged abuse of dominant position under Section 4(2)(a)(i); the matter is directed to the Director General for investigation (including of responsible officials) to be completed within 60 days, with the Commission's observations being interim and non decisive on merits.

Proposed combination approval - appreciable adverse effect on competition - horizontal overlap - assessment under the relevant factors in Section 20(4) - notice under Section 6(2) - order under Section 31(1)Proposed combination approval - appreciable adverse effect on competition - horizontal overlap - assessment under the relevant factors in Section 20(4) - The proposed acquisition of 50% of Trent Hypermarket Limited by Tesco Overseas Investments Ltd. is not likely to have an appreciable adverse effect on competition in India and is approved under Section 31(1) of the Competition Act, 2002. - HELD THAT: - The Commission considered the notice filed under Section 6(2) and assessed the combination having regard to the relevant factors in Section 20(4). The retail market in India is large and predominantly unorganised; the organised segment was a small fraction of the overall market and THL's operations (16 stores and revenue as stated in Trent's annual report) are insignificant relative to the overall and organised retail markets. The Tesco group (via TOIL) is not presently engaged in retail operations in India, and therefore there is no horizontal overlap between the parties in the Indian retail market. THL has also executed arrangements to transfer stores in states where multi-brand FDI policy is not implemented. On these material considerations, the Commission concluded that the combination is not likely to have an appreciable adverse effect on competition in India. [Paras 7]Proposed combination approved under Section 31(1); approval given without prejudice to proceedings under Section 43A and subject to revocation if information provided is found to be incorrect.Final Conclusion: The Competition Commission approved the notified combination, finding no likely appreciable adverse effect on competition in India given the lack of horizontal overlap and the relative insignificance of the target's Indian operations; the approval is without prejudice to Section 43A proceedings and is revocable if submitted information proves incorrect.

Deficiency in services - not within the domain of competition law - absence of a prima facie case - allegations of collusion - closure under Section 26(2) of the Competition Act, 2002 - information under Section 19(1)(a) of the Competition Act, 2002Deficiency in services - not within the domain of competition law - information under Section 19(1)(a) of the Competition Act, 2002 - Whether the subject-matter of the information falls within the ambit of the Competition Act, 2002 or is a complaint of deficiency in services outside the Commission's domain - HELD THAT: - The Commission examined the information filed under Section 19(1)(a) and the material on record relating to alleged faults and repairs of the informant's car. The Commission observed that the dispute primarily concerns deficiency in after-sales service and repair work carried out by authorised dealers/service centres, which is a grievance of an individual consumer concerning service quality. On that basis the Commission concluded that the subject-matter does not fall within the domain of competition law and therefore assessment of alleged abusive conduct was not required. [Paras 10]The information concerns deficiency in services and is not within the domain of the Competition Act, 2002.Absence of a prima facie case - allegations of collusion - closure under Section 26(2) of the Competition Act, 2002 - Whether there is a prima facie case of collusion or abusive conduct by the opposite parties warranting inquiry under the Act - HELD THAT: - The Commission noted the informant's allegations of collusion and other oppressive conduct by the opposite parties but found nothing on record to substantiate those broad and vague allegations. Having found no material to make out a prima facie case of collusion or contravention of the Act, the Commission applied Section 26(2) to discontinue the matter. The order directs closure of the information for lack of prima facie evidence of anti-competitive conduct. [Paras 11, 12]No prima facie case of collusion or abusive conduct was made out; the information is closed under Section 26(2) of the Act.Final Conclusion: The Commission dismissed the information: the dispute was held to be a deficiency-in-service matter outside competition law, and, in any event, there was no prima facie evidence of collusion or abusive conduct; the information was closed under Section 26(2) of the Competition Act, 2002.

Group (Explanation (b) of Section 5) - abuse of dominant position under Section 4 of the Competition Act, 2002 - relevant product market - premium sports goods - relevant geographic market - market of premium sports goods in Noida - demand-side substitutability - discriminatory conditions and differential treatment - prima facie assessment of dominanceGroup (Explanation (b) of Section 5) - All Opposite Parties constitute a 'group' for the purposes of Section 4 of the Act. - HELD THAT: - The Commission examined the corporate holdings and noted that Opposite Party No.1 acquired 100% equity in Opposite Party No.2 on 02.08.2005, and Opposite Party No.2, through its wholly-owned subsidiary, owns 93.15% equity in Opposite Party No.3. Applying Explanation (b) of Section 5, which defines 'group' by the ability to exercise specified voting rights or control management, the Commission concluded that the entities fall within the statutory definition of a group and thus can be considered together for assessing liability under Section 4. [Paras 12, 13]The Opposite Parties are a 'group' within the meaning of the Act.Relevant product market - premium sports goods - relevant geographic market - market of premium sports goods in Noida - demand-side substitutability - prima facie assessment of dominance - The relevant market is the market for premium sports goods and the relevant geographic market is Noida; on a prima facie basis the Adidas AG Group appears dominant in that market. - HELD THAT: - The Commission applied demand-side substitutability to delineate the product market, observing that premium branded sports goods have distinct end-uses and consumer groups from non-branded goods and thus constitute a separate relevant product market. For geographic delineation, the Commission relied on the statutory concept of homogenous conditions of competition and the practical consideration that consumers prefer accessible local locations, concluding that Noida constitutes the relevant geographic market for the franchise at issue. Although the Informant provided only all-India market share data, the Commission accepted prima facie that market shares in Noida would not be substantially different and, therefore, that the Adidas AG Group appears to hold a dominant position in the defined relevant market. [Paras 14, 16, 17, 18]The relevant market is premium sports goods in Noida, and prima facie the Adidas AG Group is dominant in that market.Abuse of dominant position under Section 4 of the Competition Act, 2002 - discriminatory conditions and differential treatment - prima facie assessment of dominance - The allegations do not, on the material before the Commission, constitute an abuse of dominant position under Section 4 and the matter is to be closed under Section 26(2). - HELD THAT: - The Commission considered the Informant's claims of unfair and discriminatory terms in a 2003 franchise agreement and differential treatment vis-a -vis a 2006 franchise agreement with another franchisee. Two decisive factors weighed against finding abuse: (a) the impugned agreement was executed in 2003 before the formation of the alleged dominant group in 2005, and (b) the terms complained of were not shown to have been imposed post-formation of dominance or to have continued in a manner establishing discriminatory abuse. The Commission noted that commercial arrangements may evolve and a manufacturer need not adhere to a single template; the margin difference relied upon was not substantial and renewal/termination terms were mutually agreed. The allegation concerning failure to take back dead stock was held not to raise a competition concern, and the long gap between the last sale in 2009 and correspondence in 2014 undermined the claim that harm flowed from continuing anti-competitive effects. On the available record the Commission found the allegations baseless and not amounting to abuse under Section 4. [Paras 22, 23, 24, 25, 26]Prima facie no contravention of Section 4 is made out; the case is closed under Section 26(2) of the Act.Final Conclusion: The Commission found that (i) the Opposite Parties constitute a 'group' under the Act, (ii) the relevant market is the market for premium sports goods in Noida and the Adidas AG Group appears prima facie dominant therein, but (iii) the informant's allegations do not prima facie establish an abuse of dominance under Section 4, and accordingly the matter is closed under Section 26(2).

Approval of combination - appreciable adverse effect on competition - assessment under Section 20(4) of the Act - notice under Section 6(2) of the Act - removal of defects under Regulation 14 of the Combination RegulationsAppreciable adverse effect on competition - approval of combination - assessment under Section 20(4) of the Act - Proposed acquisition of the Target SPVs by the Acquirers is not likely to have appreciable adverse effect on competition in India and the combination is approved under Section 31(1) of the Act. - HELD THAT: - The Commission considered the notice filed under Section 6(2) and the information submitted after defects were sought to be removed under Regulation 14 of the Combination Regulations. The parties proposed an internal restructuring of JPVL transferring two hydroelectric projects into newly incorporated Target SPVs and the Acquirers would acquire the entire paid up capital of those Target SPVs with specified shareholding between TAQA India, Indo-Infra and IIF-II. On assessment of the combination having regard to the relevant factors enumerated in Section 20(4) of the Act, the Commission observed that the Acquirers possess only a small presence in power generation in India. In light of that limited presence and the facts on record, the Commission concluded that the proposed acquisition would not have an appreciable adverse effect on competition in India and therefore warranted approval under Section 31(1). The approval is subject to the proviso that the order stands revoked if any information provided by the parties is found to be incorrect, and is without prejudice to other legal or statutory obligations. [Paras 9, 10, 12]Proposed combination approved under Section 31(1) as not likely to have appreciable adverse effect on competition in India; order revocable if information is found incorrect.Final Conclusion: The Commission, having assessed the notified combination and the factors in Section 20(4), approved the proposed acquisition under Section 31(1) on the basis that it is not likely to cause an appreciable adverse effect on competition in India; approval is subject to revocation if the parties' information is found incorrect.

Relevant market - telecasting of dubbed serials on television in West Bengal - agreement or concerted practice by associations of persons - restriction or control of production, supply or markets - section 3(3)(b) of the Competition Act, 2002 - trade union protest versus economic boycottRelevant market - telecasting of dubbed serials on television in West Bengal - The appropriate relevant market for assessing the alleged anti-competitive conduct - HELD THAT: - The Court held that the majority's finding of the 'Film and Television Industry of West Bengal' as the relevant market was unduly broad and unrelated to the facts of the Information, which concerned only objections to showing dubbed TV serials. On the facts the controversy was limited to exhibition on television of dubbed serials in West Bengal, not production, distribution or other film-industry activities. The minority/learned Member's identification of the market as the broadcast of TV serials dubbed in Bangla (telecasting of dubbed serials on television in West Bengal) was held to be the correct, appropriately narrow market definition for the purpose of applying section 3. [Paras 21]The relevant market is the telecasting of dubbed serials on television in West Bengal; the majority's broader market-finding is set aside.Section 3(3)(b) of the Competition Act, 2002 - agreement or concerted practice by associations of persons - restriction or control of production, supply or markets - trade union protest versus economic boycott - Whether the Co-ordination Committee's protests, letters, demonstrations and related conduct amounted to a contravention of section 3(3)(b) - HELD THAT: - Applying the correctly defined relevant market, the Court examined whether there was evidence that the Co-ordination Committee's actions limited or controlled production, supply, markets, technical development, investment or provision of services by enterprises active in that market. The Court found no such evidence: one channel (CTVN Plus) continued telecasting despite the protests, and Channel-10 ceased telecast for reasons traced to influence by a leading actor rather than a market-wide agreement among competitors. The Committee's actions were characterised as trade-union protests or pressure tactics rather than economic conduct by competitors that would foreclose market entry or supply. Mere letters, demonstrations or threats unsupported by evidence of a concerted economic agreement among enterprises in the relevant market do not satisfy the statutory test under section 3(3)(b). Consequently the majority's finding of contravention by the Co-ordination Committee was erroneous and the minority view that section 3 did not apply was approved. [Paras 22, 23]The Co-ordination Committee's conduct did not contravene section 3(3)(b); the CCI's finding of restriction of competition is set aside and the minority conclusion is confirmed.Final Conclusion: Appeal allowed. The majority order of the CCI is set aside and the minority order is affirmed: the relevant market is the telecasting of dubbed serials on television in West Bengal, and the Co-ordination Committee's protests and related actions did not attract or violate section 3(3)(b) of the Competition Act, 2002.

Failure to comply with directions of the Director General - penalty under section 43 of the Competition Act, 2002 - absence of reasonable cause - scope of investigation under section 26(1) of the Act - distinction between belated compliance and failure to complyFailure to comply with directions of the Director General - absence of reasonable cause - Whether the opposite parties failed to comply, without reasonable cause, with directions issued by the Director General under the Act - HELD THAT: - The Commission examined the sequence of notices issued by the DG and the responses by the opposite parties. It found that despite repeated opportunities and extensions, the opposite parties did not furnish the information and internal documents as requisitioned (including detailed algorithmic-change material, agreements, and internal records relating to account terminations and suspensions) within the stipulated timeframes and, on occasions, provided only partial material. The Commission rejected Google's submissions that delays were justified by the broad and technical nature of the investigations, noting that the scope of the investigations under section 26(1) was itself broad and that the information sought (for example, regarding AdWords account suspensions) fell within that scope. Having regard to the continued non-compliance, the Commission concluded that the opposite parties engaged in dilatory tactics and that no reasonable cause was shown for the failures to comply. [Paras 26, 27, 28, 29, 30]The opposite parties have failed to comply, without reasonable cause, with directions given by the Director General and are liable under the provisions of section 43 of the Act.Penalty under section 43 of the Competition Act, 2002 - distinction between belated compliance and failure to comply - Whether a penalty should be imposed for the non-compliance and, if so, the measure of penalty - HELD THAT: - Applying section 43, which permits imposition of a daily fine up to a statutory maximum where a person fails to comply without reasonable cause, the Commission noted principles that penalties are generally not imposed where non-compliance is venial or attributable to bona fide difficulties. Nevertheless, having found that the opposite parties conceded non-compliance and had relied on broad assertions that did not amount to reasonable cause, the Commission held that penalty was warranted. Considering the facts, including that some information had been supplied but that failures persisted, the Commission exercised its discretion to impose the maximum fine for a single instance of non-compliance while warning that future non-compliance would attract separate and possibly aggravated penalties. [Paras 31, 32, 33, 34, 35]A fine under section 43 is imposed; the Commission imposed the maximum fine (for one instance of non-compliance) and directed production of outstanding information and continued cooperation.Final Conclusion: The Commission held that Google failed to comply, without reasonable cause, with DG directions and imposed a penalty under section 43 of the Competition Act, 2002 (maximum fine for the instance considered), directed deposit of the fine within 60 days, and ordered furnishing of the outstanding informations/documents and continued cooperation with the investigation.

Cease and desist order - section 42 inquiry - contravention of Commission's order - imposition of fine for non-compliance - super area as unfair contractual term - supplementary order modifying agreement terms - binding nature of Commission's directions during pendency of appealSection 42 inquiry - functus officio - locus standi - Maintainability of an application under section 42 after passing of final orders and standing of a non-party to seek inquiry - HELD THAT: - The Commission held that proceedings under section 42 are by their nature post-order inquiries and may be initiated suo motu or on an application by any member of the public; therefore the contention that the Commission became functus officio after passing final orders and that the applicant lacked locus standi was rejected. The Commission explained that section 42 contemplates inquiry into compliance of its orders after those orders are passed, so an applicant need not have been a party to the original case to move an application under section 42. The objection based on related appeals before the Tribunal did not preclude the Commission from proceeding with the inquiry. (See para 22 and para 23.) [Paras 22, 23]Application under section 42 is maintainable notwithstanding that final orders under section 27 have been passed and the applicant's non-party status does not preclude locus to seek inquiry.Contravention of Commission's order - cease and desist order - super area as unfair contractual term - Whether issuance of demand letters claiming additional charges for 'super area' amounted to contravention of the Commission's cease and desist order and constituted non-compliance - HELD THAT: - The Commission examined the Agreement clause allowing unilateral increase of super area and earlier findings that such a term was unfair in contravention of section 4. It reviewed material, including admissions and information furnished by the opposite party showing substantial increases in super area (circa 36% in some flats) and the issuance of demand letters. The Commission noted that no stay of the cease and desist order was in force when the impugned demands were issued and that the opposite party failed to show any reasonable cause for non-compliance. On that basis the Commission found that issuing the demand letters dated 28.11.2012 contravened the Commission's order dated 31.01.2012, and that the contravention commenced on 28.11.2012 and continued thereafter. (See paras 27, 28, 29, 19, 31.) [Paras 19, 27, 28, 29, 31]Issuance of the impugned demand letters claiming additional 'super area' charges was a contravention of the Commission's cease and desist order of 31.01.2012.Imposition of fine for non-compliance - binding nature of Commission's directions during pendency of appeal - supplementary order modifying agreement terms - Relief to be granted for the contravention: imposition and computation of fine and applicability of the Commission's supplementary/modification directions to the impugned demands - HELD THAT: - Exercising powers under section 42 read with section 42(2), the Commission imposed a daily fine for non-compliance from the date contravention began. It fixed a per-day amount for the period up to the date of the order and a higher per-day amount thereafter until compliance or until the statutory maximum is reached, directing deposit within 60 days. Further, the Commission directed that the supplementary order (modifying agreement terms) previously issued in respect of the opposite party's other projects shall also apply to the present case; accordingly the demand letters were declared not binding on the applicants and the opposite party was directed to act only in terms of the modified agreement unless the Tribunal alters it on appeal. The Commission therefore combined monetary penalty with a direction ensuring that the modified agreement terms govern dealings with the allottees during pendency of appeals. (See paras 30, 31, 32, 33, 34, 35.) [Paras 31, 32, 33, 34, 35]A daily fine was imposed for non-compliance from 28.11.2012 (with staged rates and an overall cap as per statute), the opposite party was directed to pay the fine within 60 days, and the Commission's supplementary order modifying agreement terms was made applicable so that the demand letters are not binding on the applicants.Final Conclusion: The Commission held the opposite party to have contravened its cease and desist order by issuing demand letters claiming additional 'super area' charges, rejected preliminary objections to maintainability, imposed a daily monetary penalty recoverable within statutory limits, and directed that its supplementary order modifying agreement terms govern the parties' relations so that the impugned demands are not binding on the applicants.

Anti-competitive practice of fixing selling prices by an association - concerted decision/practice by an association of enterprises - restriction or control of supply and market by collective action - rebuttable presumption under Section 3(3) for certain practices - liability of office-bearers and executive members for contraventions - cease and desist and penalty powers under Section 27Anti-competitive practice of fixing selling prices by an association - concerted decision/practice by an association of enterprises - rebuttable presumption under Section 3(3) for certain practices - BCDA and its District and Zonal Committees engaged in anti-competitive practices in violation of Section 3(3)(a) and 3(3)(b) read with Section 3(1) of the Act - HELD THAT: - The Commission found on the evidence (minutes, circulars, witness statements and district inspection reports) that BCDA, as an association of enterprises, adopted and sought to enforce a decision that drugs be sold only at MRP and that discounts should not be given. The minutes and communications show an organised programme (w.e.f. 01.04.2012), the formation and action of District/Zonal/Vigilance Committees, issuance/display of 'No Discount' notices, picketing, fines, threats and stoppage of supplies to non-cooperating members. Such concerted practice directly or indirectly fixed the selling price (MRP as the ruling price) and curtailed price competition, thereby falling within the category of practices in Section 3(3)(a) and (b) which attract the statutory presumption of appreciable adverse effect on competition. The pleas of ignorance of law, bona fide protection of small retailers and moral suasion were rejected on the record. The Commission therefore concluded that the impugned conduct caused or was likely to cause appreciable adverse effect on competition. [Paras 62, 63, 64, 65, 66]BCDA and its District and Zonal Committees were engaged in anti-competitive practices in contravention of Section 3(3)(a) and 3(3)(b) read with Section 3(1) of the Act.Liability of office-bearers and executive members for contraventions - cease and desist and penalty powers under Section 27 - Office-bearers and executive committee members of BCDA are liable for the contraventions and punishable under Section 27 of the Act - HELD THAT: - Having examined the supplementary investigation, minutes and role of those who took/ratified decisions, the Commission held that office-bearers and executive committee members participated in the decision-making and organisational actions that caused the contravention. The Commission noted that Section 27 sanctions directed against associations can be applied to those who run and direct the association and declined to limit liability on the basis of BCDA's status as a non-profit company. Accordingly, the identified office-bearers and executive members were held guilty of the contravention and liable to penalties under Section 27. [Paras 67, 68, 69, 70, 71]The office-bearers and executive committee members named by the DG are guilty of the contravention and are liable to be punished under Section 27.Cease and desist and penalty powers under Section 27 - Remedial directions and quantum of penalty for BCDA and specified office-bearers/executive members were determined - HELD THAT: - The Commission issued a cease-and-desist direction requiring BCDA and its office-bearers/executive members to immediately desist from the anti-competitive practices found. Viewing the gravity and market control exercised by BCDA, and finding no mitigating factors on record, the Commission decided to impose monetary penalties to ensure deterrence. The Commission fixed penalties by applying rates of 10% of average turnover/income/receipts for those who run affairs and play lead role, and 7% for executive committee members, computed on the financial statements filed; associated directions were issued for undertaking and deposit of penalty within specified timelines. [Paras 72, 73, 74, 75, 76]BCDA and the named office-bearers/executive members are directed to cease and desist; monetary penalties are imposed at the specified rates and are to be deposited within the prescribed time, with an undertaking to be filed.Cease and desist and penalty powers under Section 27 - Decision on quantum and compliance in respect of certain individual members to be considered separately - HELD THAT: - The Commission recorded that one office-bearer is deceased and that another (Shri Pradeep Kumar Paul) claimed not to be in business since 2010 and sought exemption from filing financial statements; Shri Dinesh Parolia had not submitted financial statements. The Commission reserved separate consideration and decision on quantum of penalty and issues arising from non-submission or absence of financial statements for these individuals. [Paras 73]Quantum of penalty and related decisions concerning Shri Dinesh Parolia and Shri Pradeep Kumar Paul to be taken separately.Final Conclusion: On the record (minutes, DG reports, witness statements and investigations), the Commission held that BCDA and its District/Zonal Committees engaged in concerted anti-competitive practices of enforcing sale at MRP and restricting discounts, thereby fixing selling prices and restricting supply in breach of Section 3(3)(a) and 3(3)(b) read with Section 3(1); the office-bearers and executive members who directed/ratified those practices were held liable under Section 27 and directed to cease and desist, with monetary penalties imposed as specified and limited residual questions concerning penalty for certain individuals reserved for separate decision.

Abuse of dominant position - dominance - relevant product and geographic market - enterprise and service - contravention of Section 4 of the Competition Act, 2002Enterprise and service - ICAI (OP) falls within the definition of 'enterprise' under the Competition Act, 2002 and its non regulatory activities constitute provision of 'service'. - HELD THAT: - Although OP exercises statutory regulatory functions under the Chartered Accountants Act, 1949, it also undertakes commercial/economic activities such as conducting professional courses, CPE programmes and publications. Those non regulatory activities are distinguishable from its sovereign regulatory duties and amount to engagement in the provision of services. Organising CPE seminars does not qualify as a sovereign function that would exclude OP from the definition of 'enterprise' under the Act. [Paras 5]OP is an 'enterprise' and renders 'service' for the purposes of the Competition Act, 2002.Relevant product and geographic market - The relevant market is identified as organising recognised CPE Seminars/Workshops/Conferences in India (pan India). - HELD THAT: - The dispute relates to the structured CPE credits and the organisation of seminars/conferences/workshops that qualify for such credits. On facts, the conditions of supply and demand for these recognised CPE events are homogenous across the country; accordingly the relevant product market is the organising of recognised CPE seminars/workshops/conferences and the relevant geographic market is pan India. [Paras 6]Relevant market framed as 'organising recognised CPE Seminars/Workshops/Conferences in India'.Dominance - abuse of dominant position - contravention of Section 4 of the Competition Act, 2002 - Prima facie finding that OP appears dominant in the relevant market and that its restriction of recognition to its own Program Organising Units may amount to an arbitrary exercise of power prima facie contravening Section 4 of the Act, warranting investigation. - HELD THAT: - The CPE policy permits only OP recognised POUs to organise seminars carrying CPE credits. Evidence on record indicates that external organisations seeking recognition were not granted it, while OP's POUs (study circles) effectively serve as the sole providers of recognised CPE events. This restriction limits members' choice and creates entry barriers for other organisers despite the existence of numerous external seminars by reputed bodies which are not recognised for CPE credits. On the material before it, the Commission finds force in the allegation that OP, by confining recognition to its organs and deriving revenue from seminars, prima facie occupies a dominant position in the defined market and its conduct may amount to an unreasonable restraint and arbitrary exercise of power contrary to Section 4; however, the Commission has not formed a final opinion on merits. [Paras 7, 8, 9, 10]Prima facie dominance and a prima facie case of abuse under Section 4 are found; investigation directed.Investigation - Director General is directed to investigate the matter and complete the investigation within 60 days, including probing any other parties or responsible persons if found involved. - HELD THAT: - Given the prima facie conclusions, the Commission has directed the DG to conduct a detailed investigation under the Act. The DG is to examine involvement of any other parties (including group companies) and the role of persons in charge of the conduct of business after providing them opportunity of hearing. The Commission clarified that observations made in the order do not constitute a final view on merits and the DG must carry out the investigation independently. [Paras 11, 12, 13, 14]DG to investigate and complete the probe within 60 days; copy of order and records to be forwarded to DG.Final Conclusion: The Commission held that OP's non regulatory activities bring it within the definition of 'enterprise', defined the relevant market as organising recognised CPE seminars/workshops/conferences in India, recorded prima facie dominance and a prima facie case of abuse under Section 4, and accordingly directed the Director General to investigate the matter within 60 days; no final adjudication on merits was made in this order.

Jurisdiction of competition authority over sports federations - pyramid structure of sports governance - inherence and proportionality test - denial of market access - abuse of dominance - vertical exclusive supply agreement - relevant market for private professional leagues - relevant market for services of hockey players - separation of regulatory and commercial rolesJurisdiction of competition authority over sports federations - Whether the Commission has jurisdiction over Hockey India and FIH - HELD THAT: - After examining the functional activities of HI and FIH and international jurisprudence the Commission applied the Act's functional test. It held that activities such as grant of franchise, media and sponsorship rights and other revenue-generating organising functions are economic in character. Given the inclusive definition of 'person' and the extra-territorial reach under Section 32, the Commission concluded that neither the non profit form nor foreign seat of FIH ousts the Act's jurisdiction. National sports federations and international federations carrying out such economic functions therefore fall within the Act's ambit and the Commission has jurisdiction over HI and FIH.The Commission has jurisdiction to examine HI and FIH under the Competition Act.Relevant market for private professional leagues - Definition of the relevant product and geographic market for assessing foreclosure of rival leagues - HELD THAT: - Considering consumer substitutability from the spectator's viewpoint and characteristics, intended use and pricing, the Commission treated the final product as the event. It rejected narrowing the market to 'governing activities' and recognised distinct genres of hockey events (international representative events, domestic national events and private professional franchise leagues). Applying those characteristics and the SNNIP rationale, the Commission defined the product market for the foreclosure allegation as 'the market for organization of private professional hockey leagues in India' and treated the geographic market as pan India for the purposes of assessing effects on Indian consumers.Relevant market for foreclosure analysis is the market for organization of private professional hockey leagues in India; geographic market: pan India.Relevant market for services of hockey players - Definition of the relevant market for assessing restrictions on players' movement - HELD THAT: - For allegations concerning restraints on players, the Commission analysed the relationship between HI and players and the direction of demand. It identified the appropriate market as the market for services of hockey players (where HI is the consumer procuring players' services). This definition recognises the complementarity between organisers and players and focuses the competition analysis on labour/service input market rather than on governance alone.Relevant market for analysis of restrictions on players is the market for services of hockey players.Abuse of dominance - pyramid structure of sports governance - Whether Hockey India is dominant in the market for organization of private professional hockey leagues in India - HELD THAT: - Having defined the market for private professional leagues, the Commission examined sources of market power. It found that HI's regulatory rights (sanctioning authority and NOC control under FIH's framework) and its control over a pool of top players are significant sources of dominance because they can create entry barriers and affect organisers' ability to field quality events. Drawing on comparable jurisprudence, the Commission concluded that HI occupies a dominant position in that market.Hockey India is dominant in the market for organization of private professional hockey leagues in India.Abuse of dominance - Whether Hockey India is dominant in the market for services of hockey players - HELD THAT: - Examining the market for players' services, the Commission observed that HI functions as a monopoly buyer with the power to determine selection for national representation and to require CoC/NOC conditions; absence of player associations and limited countervailing buyer power reinforce HI's ability to act independently of players. These factors support a finding of dominance of HI in the market for services of hockey players.Hockey India is dominant in the market for services of hockey players.Inherence and proportionality test - denial of market access - Whether regulations relating to sanctioned and unsanctioned events (FIH bye laws and their implementation by HI) amounted to denial of market access or abuse of dominance (Section 4) or to a horizontal agreement (Section 3) - HELD THAT: - The Commission applied the inherence proportionality approach to sports rules: it accepted that objectives like protecting integrity of the sport and prioritising the international calendar can be legitimate. It analysed (i) the authority and sanctioning procedure in the bye laws, (ii) that WSH had not formally sought sanction under the bye laws, and (iii) that the bye laws were prospectively applied from 31 March 2011 so as to protect commitments entered before that date. The Commission found insufficient evidence that HI/FIH applied the rules in a manner that foreclosed WSH or that the bye laws constituted a horizontal agreement in contravention of Section 3(3)(b). On the factual record it did not accept that the bye laws or their implementation produced a denial of market access or an abuse of dominance requiring remedial orders under Section 4.Allegations that FIH bye laws and their implementation by HI violated Section 3(3)(b) or amounted to denial of market access/abuse under Section 4 are not substantiated.Vertical exclusive supply agreement - Whether the Code of Conduct (CoC) between Hockey India and players amounted to an exclusive supply agreement in contravention of Section 3(4) - HELD THAT: - The Commission examined the CoC's non participation and NOC provisions in light of sports specificities and vertical restraint doctrine. It rejected the DG's narrow view that no vertical relationship existed, treating the relationship as one where HI (buyer/organiser) procures players' services (suppliers). However, evaluating inherence and proportionality, the Commission concluded that the CoC's restrictions (non participation in unsanctioned events, NOC process and conduct standards) are, on their face, regulatory measures inherent to sporting objectives and may be proportionate. Absent evidence of discriminatory, disproportionate application or lack of any legitimate sporting justification, the Commission did not find a contravention of Section 3(4).CoC terms do not, on the available record, constitute a violative exclusive supply agreement under Section 3(4).Separation of regulatory and commercial roles - Remedial guidance regarding potential conflict of interest arising from HI's dual regulatory and organising roles - HELD THAT: - Although the Commission did not find sufficient evidence to hold HI or FIH in contravention of Sections 3 or 4 on the facts presented, it expressed concern at the inherent potential for conflict where a single body combines regulatory sanctioning functions with organising/commercial activities. Observing lack of clear parameters governing the scope of 'organization of events' and noting circumstantial indicators in the DG report, the Commission recommended that HI implement internal safeguards to ensure regulatory powers are not used to further commercial interests and adopt a fair, transparent, time bounded NOC process.No contravention found, but HI should establish internal controls and transparent NOC procedures to segregate regulatory and commercial functions.Final Conclusion: The Commission, while upholding its jurisdiction over Hockey India and FIH and recognising HI's dominance in the markets defined, concluded that the FIH bye laws and the CoC as applied on the material before it did not establish contraventions of Section 3(3)(b), Section 3(4), or Sections 4(2)(a), 4(2)(c) and 4(2)(e) of the Act. The Commission nevertheless recorded concern about the conflict potential in combining regulatory and commercial roles and directed HI to put in place internal safeguards and a fair, time bound NOC mechanism; the Secretary was directed to notify the parties.

Tie-in arrangement - appreciable adverse effect on competition - relevant market (smartphones and GSM mobile services) - dominant position - abuse of dominant position - vertical restraints under Section 3(4) - jurisdiction of a sectoral regulator versus Competition CommissionJurisdiction of a sectoral regulator versus Competition Commission - Competition Commission has jurisdiction to examine competition issues arising from activities of cellular service providers notwithstanding sectoral regulation by TRAI - HELD THAT: - The Director General and the Commission considered objections that tariff and related issues fall exclusively within the remit of TRAI/TDSAT. The Commission accepted the DG's reasoning that competition issues emanating from practices of sector-regulated entities fall within the Competition Act under Section 62 and are examinable by the Commission. The Commission therefore rejected the preliminary objection that CCI lacked jurisdiction to investigate the allegations in this information and proceeded to consider merits. [Paras 13, 30]Objections as to exclusive jurisdiction of TRAI/TDSAT are repelled; CCI has jurisdiction to investigate the competition aspects raised.Relevant market (smartphones and GSM mobile services) - The appropriate relevant markets for adjudication are the market for smartphones in India and the market for GSM mobile services in India - HELD THAT: - In light of the dual nature of the complaint (handset distribution and service provision) and the DG's delineation, the Commission agreed that product substitutability must be assessed from demand perspective and treated smartphones as a distinct product-market and GSM mobile services as the service-market for this case. The Commission rejected the informant's single-brand market proposal for iPhone alone, observing reasonable interchangeability between iPhone and other smartphones and technological distinctions between GSM and CDMA networks that confined the service market to GSM. [Paras 44, 45, 46, 48, 51]Two relevant markets identified: (i) smartphones in India; and (ii) GSM mobile services in India.Tie-in arrangement - vertical restraints under Section 3(4) - appreciable adverse effect on competition - Sale of locked iPhones constituted a tie-in arrangement but did not cause an appreciable adverse effect on competition in the relevant markets - HELD THAT: - The DG found that iPhones were sold locked to the carrier and characterised that arrangement as a contractual tie-in. The Commission examined whether the tie-in satisfied the conditions for anti-competitive tying (separate products, market power in tying product, and effect on a not-insubstantial commerce). Relying on market data showing Apple's small market share in smartphones and the minuscule proportion of GSM subscribers using iPhones, the availability of multiple distribution channels (MNOs and APRs), the temporariness of the lock-in, and consumers' ability to get phones unlocked or purchase unlocked units, the Commission concluded there was no foreclosure, entry barrier formation or consumer harm amounting to AAEC under Section 19(3). The Commission also noted pro-competitive rationales and international experience of such arrangements. [Paras 74, 75, 76, 77, 79]Tie-in established but no contravention of Section 3(4) as no appreciable adverse effect on competition is proven.Dominant position - abuse of dominant position - Neither Apple (manufacturer) nor Airtel and Vodafone (GSM service providers) were found to be dominant in their respective relevant markets; consequently no abuse of dominance under the Act is established - HELD THAT: - The DG assessed market shares and other Section 19(4) factors. Apple's share in the smartphone market in India during 2008-11 was low (under c.3-6%), and the Commission endorsed the DG's multi-factor analysis that Apple lacked market strength to operate independently of competitive forces or to affect the market. Similarly, no single GSM operator was found to possess sufficient market power; competitors were numerous and market shares did not indicate dominance or any evidence of coordinated conduct. As dominance was not established, the requisite foundation for Section 4 violation (abuse of dominance) was absent. [Paras 56, 58, 59, 61, 62]No finding of dominance for Apple, Airtel or Vodafone; no case for abuse of dominant position under Section 4.Restrictions on third-party applications - appreciable adverse effect on competition - Practices restricting third-party applications on iPhones did not demonstrate an anti-competitive effect warranting action under the Act - HELD THAT: - DG investigated Apple's control over third-party application downloads and Apple's App Store policy. The DG found no evidence of appreciable adverse competitive effects arising from Apple's practice of permitting only approved applications via its App Store, taking into account alternative application platforms on other smartphones and the legitimate security and quality control rationales for application monitoring. The Commission accepted the DG's conclusion that these practices did not amount to a violation of competition law. [Paras 22, 28]No contravention found in Apple's application-approval practices; no AAEC established.Final Conclusion: The Commission, after adopting the DG's findings and its own review, held that (i) it has jurisdiction to examine the competition aspects despite sectoral regulation; (ii) the relevant markets are smartphones and GSM mobile services in India; (iii) the sale of locked iPhones amounted to a tie-in arrangement but did not produce an appreciable adverse effect on competition; (iv) Apple, Airtel and Vodafone were not dominant in their respective relevant markets and no abuse of dominance was proved; and (v) there was no contravention of the Competition Act under the provisions alleged, accordingly the case is closed.

Appreciable adverse effect on competition - exclusive supply agreement - exclusive distribution agreement - tie-in arrangement - patent pooling as a restrictive practice - application of section 3(4) in respect of agreements among enterprises at different stages of the production chain - relevant product market: production/manufacture of ARV drugs in India - dominant position and abuse of dominanceApplication of section 3(4) in respect of agreements among enterprises at different stages of the production chain - exclusive supply agreement - exclusive distribution agreement - tie-in arrangement - patent pooling as a restrictive practice - appreciable adverse effect on competition - Whether the tripartite licence agreement between the opposite party, MPP and Indian pharmaceutical companies prima facie causes an appreciable adverse effect on competition under section 3(4) of the Act - HELD THAT: - The tripartite agreement falls within the ambit of section 3(4) as it concerns parties at different stages of the production chain and therefore warrants examination for appreciable adverse effect on competition. The Commission examined market realities and the factors in section 19(3) and found that the Indian ARV market is dominated by generic manufacturers, supplies to donor and public programmes are substantial, and patented-product sales form a negligible portion of the market. India supplies the large majority of donor-funded ARV volumes and there are numerous Indian manufacturers and brands competing in the market. Given the fragmented market, growing number of brands, WHO pre-qualification requirements and limited geographic and commercial significance of the patented products at issue, even if restrictive clauses existed they were unlikely to produce an appreciable adverse effect on competition in India. Consequently no prima facie case of contravention of section 3(4) was made out to warrant a reference to the Director General for investigation. [Paras 17, 22, 23]No prima facie appreciable adverse effect on competition under section 3(4) was made out against the opposite party in respect of the tripartite licence agreement.Pre-existing voluntary licence entered into prior to enforcement of the Act - Whether the voluntary non-exclusive licence agreements entered into by the opposite party in 2006 with Indian pharmaceutical companies could be examined under the Act - HELD THAT: - LA-2006 was executed prior to the substantive enforcement date of the Competition Act (20.05.2009). The Commission held that it was not clear whether LA-2006 continued to have effect post enforcement of the Act and therefore the 2006 agreements could not be examined for contravention under the Act which came into force at a later date. [Paras 17]LA-2006 entered into in 2006 could not be examined under the Act for the purposes of the present inquiry.Relevant product market: production/manufacture of ARV drugs in India - dominant position and abuse of dominance - Whether the opposite party holds a dominant position in the relevant market in India and whether any abuse of dominance under section 4 of the Act was made out - HELD THAT: - The Commission defined the relevant product market as production/manufacture of ARV drugs in India and the geographic market as whole of India. On the material, the opposite party had no legal existence or business presence in India and the market was fragmented with many players and more than 150 brands produced by over 20 manufacturers. Given these features, the opposite party did not enjoy a position of strength enabling it to operate independently of competitive forces in the Indian market. Accordingly, no case of dominance or abuse of dominance under section 4 was established. [Paras 24, 25]The opposite party is not in a dominant position in the Indian ARV manufacturing market and no abuse of dominance under section 4 was made out.Final Conclusion: The Commission found no prima facie case under section 3 or section 4 of the Competition Act against the opposite party and directed closure of the matter under section 26(2).

Relevant market of popularity evaluation of television programmes - dominant position - abuse of dominant position by discrimination in service provision - denial of market access - prima facie reference for investigation under section 26(1) - investigation and fixing responsibility of persons in charge under section 48Relevant market of popularity evaluation of television programmes - dominant position - The relevant market was identified as the service market of popularity evaluation of TV programmes and, prima facie, the opposite party was a dominant player in that market. - HELD THAT: - The Commission treated TRP/TVR as the commercial service of evaluating popularity of television programmes which directly informs advertisement revenue. On the material before it, the OP (TAM Media Research) was shown to be the principal provider of such ratings in India. Having regard to the role of TRP/TVR in determining ad rates and the OP's nationwide provision of ratings, the Commission prima facie concluded that the relevant market is the service of popularity evaluation of TV programmes and that the OP appears to be dominant in that market. [Paras 8]Relevant market declared as popularity evaluation of TV programmes and OP prima facie held to be dominant.Abuse of dominant position by discrimination in service provision - denial of market access - There was a prima facie abuse of dominant position by the OP by confining people meters to urban areas and maintaining a small, unrepresentative sample, thereby discriminating against broadcasters with rural viewership and prima facie denying them advertisement market access. - HELD THAT: - The Commission found that the OP had installed only about 8,000 people meters confined to urban areas and had excluded rural households, despite rural viewers constituting a substantial portion of the population and having different viewing tastes. Because the OP reported ratings as if representative PAN India while omitting rural sampling, the Commission held that such practice distorted viewership measurement, amounted to discrimination in providing the service to the prejudice of customers (notably broadcasters like Doordarshan), and prima facie resulted in denial of advertisement market access. The Commission noted that a true PAN India rating would require a larger and appropriately distributed sample across rural and urban populations. [Paras 9, 11, 12]Prima facie abuse of dominance established by discriminatory sampling and resulting denial of market access to broadcasters with rural audiences.Prima facie reference for investigation under section 26(1) - investigation and fixing responsibility of persons in charge under section 48 - The Commission found sufficient material to refer the matter to the Director General for investigation under section 26(1) of the Act and directed the DG to investigate the OP and, if violation is found, the persons in charge under section 48, giving them opportunity of hearing and to submit the report within 60 days. - HELD THAT: - Having recorded the prima facie findings on relevant market, dominance and abusive practices, the Commission ordered a formal investigation by the DG under the Act. The DG was directed to inquire into possible violations of the Competition Act and, where contraventions are found, to investigate the role of persons who were in charge of the company's conduct for the purpose of fixing responsibility under section 48, affording them an opportunity of hearing. The Commission emphasised that its observations were tentative and that the DG must conduct the investigation independently of those observations. [Paras 13, 15, 16]Matter referred to the Director General for investigation; DG to investigate company and persons in charge under section 48, provide hearings, and submit report within 60 days.Final Conclusion: The Commission held that the OP prima facie dominated the market for TV programme popularity evaluation and that its urban-only, limited sampling practices constituted prima facie discriminatory abuse and denial of market access; the case was therefore referred to the Director General for investigation, including inquiry into persons in charge, with a 60-day report timeline.

Bid rigging / collusive bidding - agreement presumptive of appreciable adverse effect on competition - horizontal agreement among competitors - cease and desist direction - exercise of discretion in imposition of penaltyBid rigging / collusive bidding - horizontal agreement among competitors - agreement presumptive of appreciable adverse effect on competition - The opposite parties entered into an agreement resulting in bid rigging in contravention of section 3(3)(d) read with section 3(1) of the Act. - HELD THAT: - The Commission accepted the DG's findings that a large group of participating firms quoted substantially identical all inclusive rates and each offered less than 50% of the tender quantity, facts not disputed by the parties (paras 12, 31). The DG recorded multiple corroborative indicia - identical price ranges across 29 firms, near total of offered quantities approximating tender quantity, similar handwriting in price entries, uniform formats and contents of covering letters, and sequential demand drafts - from which it inferred a meeting of minds and concerted action to determine prices and allocate supply (paras 15-23, 16, 18, 21, 22, 23). The Commission applied the inclusive definition of 'agreement' and the statutory presumption in section 3(3) that horizontal arrangements which result in bid rigging have an appreciable adverse effect on competition; having regard to the lack of any satisfactory or plausible explanations from the opposite parties and their replies which did not rebut the presumption, the Commission concluded on the preponderance of probabilities that the conduct amounted to bid rigging in violation of section 3(3)(d) read with section 3(1) (paras 30-36, 34). The Commission also noted that clandestine conduct in such matters often requires inference from coincident indicia rather than direct documentary admissions (para 33). [Paras 31, 33, 34, 35, 36]The opposite parties contravened the provisions of section 3(3)(d) read with section 3(1) of the Act by engaging in bid rigging and related concerted conduct.Appreciable adverse effect on competition - factors under section 19(3) - The Commission found that the impugned agreement is presumed to have, and the evidence establishes an appreciable adverse effect on competition. - HELD THAT: - Although the statutory presumption in section 3(3) would suffice once a horizontal agreement resulting in bid rigging is established, the DG independently examined factors in section 19(3) and concluded that the conduct created entry barriers, tended to foreclose competition and did not result in benefits to the consumer (railways) or improvements contemplated by section 19(3) (paras 25-29, 26-29). The collective offering at an elevated artificial price, division of quantities close to the tender size, and past similar conduct supported the finding that competition was adversely affected; the opposite parties failed to rebut these conclusions (paras 26-29, 38). [Paras 26, 27, 28, 29, 38]The arrangement is presumed to have an appreciable adverse effect on competition and, on independent assessment under section 19(3), the conduct did have such an effect.Cease and desist direction - exercise of discretion in imposition of penalty - Whether penalty should be imposed under section 27; the Commission exercised its discretion to issue only a cease and desist direction and not impose penalties in view of the circumstances. - HELD THAT: - While the Commission found contravention of section 3 and noted the availability of penalties under section 27, it considered the particular facts - participation of small and micro enterprises, apparent lack of awareness, many replies effectively incriminating themselves, and the fact that offers were for less than 50% quantity and not lowest bids (paras 44-45). Balancing these factors, the Commission concluded that the ends of justice were met by issuing a cease and desist order under section 27(a) rather than imposing monetary penalties; parties were warned about statutory consequences of non compliance and directed to file undertakings (paras 43-48). [Paras 43, 44, 45, 46, 47]The Commission directed the opposite parties to cease and desist from the anti competitive conduct and declined to impose monetary penalties in the circumstances of the case.Final Conclusion: The Commission concluded that the participating firms engaged in bid rigging in violation of section 3(3)(d) read with section 3(1) of the Competition Act, 2002; it issued cease and desist directions against them and, in the exercise of discretion given the parties' profile and circumstances, did not impose monetary penalties.

Relevant product market - Relevant geographic market - Dominant position - Abuse of dominance - Franchise agreement - territorial exclusivity - Prima facie case for investigation - Closure for lack of prima facie caseRelevant product market - Relevant geographic market - The relevant product and geographic markets for assessing Section 4 contraventions were identified. - HELD THAT: - Applying the statutory tests and factors, the Commission treated the product/service market as beauty and wellness services for women provided through exclusive saloons for women. Geographic delimitation was based on customer preferences and substitutability: Gurgaon was treated as one relevant geographic market and Delhi as a separate relevant geographic market, because conditions of competition and consumer choice in these urban territories are distinctly homogenous and substitutability across these areas is practicable but distinguishes them as separate markets. [Paras 11]Relevant market defined as beauty and wellness services for women through exclusive saloons in the territory of Gurgaon and in the territory of Delhi.Dominant position - Abuse of dominance - Franchise agreement - territorial exclusivity - Whether the Opposite Party (Lakme) enjoyed a dominant position in the defined relevant markets and whether its conduct amounted to abuse of dominance. - HELD THAT: - On the material before it, the Commission found the markets to be highly fragmented and unorganised with numerous branded and unbranded saloons catering to varied customer strata. The presence of a limited number of Lakme saloons (seven planned) in these large and competitive urban markets could not, on the facts, confer dominance on Lakme in either Delhi or Gurgaon. Given the multiplicity of alternative providers and customer-driven substitutability, the Commission concluded that Lakme could not be regarded as dominant and therefore the allegation that it abused dominance by opening company-run saloons in the territorial area of a franchisee did not stand on the requisite threshold factual basis. [Paras 12]Lakme was not dominant in the relevant markets; allegations of abuse of dominance were not established on the material before the Commission.Prima facie case for investigation - Closure for lack of prima facie case - Whether there existed a prima facie case to proceed to investigation under the Act. - HELD THAT: - Having defined the relevant markets and assessed dominance, the Commission concluded that the informant had not made out even a prima facie case of contravention of Section 4. The factual matrix, including market fragmentation and availability of numerous alternative providers, did not support initiation of a full investigation. Consequently, continuation to the investigation stage was unnecessary. [Paras 13]No prima facie case for investigation; matter closed under the Commission's power to cease proceedings for want of a prima facie case.Final Conclusion: The information alleging contravention of Sections 3 and 4 was examined; the Commission defined the relevant product and geographic markets (Gurgaon and Delhi), found Lakme not to be dominant in those markets, and held that there was no prima facie case of abuse of dominance-hence the matter was closed for lack of a prima facie case.