Lakshmikumaran & Sridharan (New Delhi)

Aditya Bhattacharya

Lakshmikumaran & Sridharan (New Delhi)
Partner

Aditya Bhattacharya is a Joint Partner in the Litigation Team of Lakshmikumaran & Sridharan, New Delhi. Aditya handles a variety of Indirect Tax litigation matters before the Supreme Court and High Courts for varied sectors like Software, Telecommunications, and Manufacturing. Appearing in all High Courts in Northern, Eastern, and Central States in India, he has over six years of experience in handling Indirect Litigation matters.

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Lakshmikumaran & Sridharan (New Delhi)
Lakshmikumaran & Sridharan (New Delhi)
Lakshmikumaran & Sridharan (New Delhi)

Articles

5375 Bulletin

L. Badri Narayanan, Charanya Lakshmikumaran, Aditya Bhattacharya, Neelambera Sandeepan The Indian Competition Authority fines renewable energy firm for gun-jumping (Adani Green / SB Energy)

504

Adani Greens Energy Limited (“Adani Green/Acquirer”) was served with a show cause notice (“SCN”) on 14 August 2021 in relation to its acquisition of S.B. Energy Holding Limited (“S.B. Energy/Target”) (“Combination”). The notice for the Combination was filed on 18 May 2021, pursuant to the execution of (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Aditya Bhattacharya, Neelambera Sandeepan The Indian Competition Authority reprimands the national poultry farmers’ association for price fixing, and issues a cease and desist order (T. R. Chandran / People for Animals / National Egg Co-ordination Committee)

66

KEY POINTS The knowledge among members that prices have to be followed strictly to avoid adverse action in itself creates an ecosystem where the requirement of strict adherence permeates to each nook and corner. BRIEF FACTS Two separate informations were filed by Mr. T. R. Chandran (“Mr. (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Aditya Bhattacharya, Neelambera Sandeepan The Indian Competition Authority orders an investigation into a Big Tech firm for allegedly abusing its dominant position by forcing certain practices on digital publishers (Google / Digital News Publishers Association)

185

KEY POINTS In a well-functioning democracy, the critical role played by news media cannot be undermined, and it needs to be ensured that digital gatekeeper firms, such as Google, do not abuse their dominant position to harm the competitive process of determining a fair distribution of revenue (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Aditya Bhattacharya, Neelambera Sandeepan The Indian Competition Authority launches an investigation into a mining company for alleged abuse of dominance by excessive pricing (Kalpit Sultania / IREL)

178

KEY POINTS The thrust of the definition of the term ‘enterprise’ under the Act is on the economic nature of the activities discharged by the entity concerned. BRIEF FACTS An information was filed by Mr. Kalpit Sultania (“Informant”) against IREL (India) Ltd. (“IREL/OP”) alleging abuse of (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Aditya Bhattacharya, Neelambera Sandeepan The Indian Competition Authority initiates probe into a Big Tech firm for potential abuse of dominance in the app store market (Apple / Together We Fight Society)

177

KEY POINTS Unlike traditional ‘single-brand’ markets or aftermarkets, the present digital ecosystems including app stores operate as a platform connecting two or multiple different sets of market participants, such as, app developers and users. The multisided nature of this market needs to be (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Aditya Bhattacharya, Neelambera Sandeepan The Indian Competition Authority closes an investigation into a chip manufacturer for allegedly abusively refusing to share product design information with a business partner (Velankani Electronics / Intel)

66

BRIEF FACTS Velankani Electronics Pvt. Ltd. (“Velankani/Informant”), a company engaged in the business of designing and manufacturing electronic products in India, including ‘servers’, filed an information against Intel Corporation (“Intel/OP”) alleging abuse of dominant position. Velankani, for the (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Aditya Bhattacharya, Neelambera Sandeepan The Indian Competition Authority fines paper manufacturers for using a trade association to collude and increase prices (Paper Cartel)

66

KEY POINTS Mere attendance in meetings where commercially sensitive information such as pricing is discussed, influences and takes away the independent decision making ability of the competitors. They can no longer independently decide the price related policies in the market and therefore, (...)

Charanya Lakshmikumaran, Aditya Bhattacharya, Neelambera Sandeepan, L. Badri Narayanan The Indian Competition Authority clears 71.25% purchase of a national asset manager by a newly minted Singaporean company which itself is owned by large global asset manager (BCP TopCo XII Pte / ASK Investment Managers)

66

A notice was filed by BCP TopCo XII Pte Ltd. (“Acquirer”) pursuant to a Share Purchase Agreement (“SPA”) between itself and ASK Investment Managers Limited (“Target”), persons set out in the SPA and the Shareholders Agreement, inter alia between the Acquirer and the Target. The Acquirer and the (...)

Charanya Lakshmikumaran, Aditya Bhattacharya, Neelambera Sandeepan, L. Badri Narayanan The Indian Competition Authority closes an investigation into possible cartelisation and bid rigging amongst road construction firms (Uttar Pradesh Road Construction Cartel)

90

KEY POINTS Mere commonality of ownership of participating firms is not sucient to conclude bid rigging in the absence of any material indicating collusion. BRIEF FACTS Based on an audit report by Comptroller and Auditor General (“CAG”) on construction management in road works in Uttar Pradesh (...)

Charanya Lakshmikumaran, Aditya Bhattacharya, L. Badri Narayanan, Neelambera Sandeepan The Indian Competition Authority unconditionally approves merger between two life insurance companies without finalizing the market definition because the merger would have low market shares in all potential relevant markets (HDFC Life Insurance / Exide Life Insurance)

70

A notice was filed by HDFC Life Insurance Company Limited (“Acquirer/HDFC Life”) pursuant to the execution of a Share Purchase and Share Swap Agreement, between HDFC Life, Exide Life Insurance Company Limited (“Target/Exide Life”), and Exide Industries Limited (‘Exide Industries’). The Acquirer and (...)

Aditya Bhattacharya, Charanya Lakshmikumaran, Neelambera Sandeepan, L. Badri Narayanan The Indian Competition Authority unconditionally approves the acquisition of shareholding in a general insurance company by a commercial bank (HDFC Bank / HDFC Ergo General Insurance)

65

A notice was filed by HDFC Bank Limited (“HDFC Bank/Acquirer”) pursuant to the execution of a Binding Term Sheet between HDFC Bank and Housing Development Finance Corporation Limited (“HDFC”). It envisages an acquisition by HDFC Bank of 4.99% of the outstanding equity share capital, on an undiluted (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya The Indian Competition Authority approves joint acquisition of 100% shareholding in a biopharmaceutical outsourcing company by global investment companies (Parexel / Goldman Sachs / EFMS)

56

A notice was filed by Phoenix Parentco, Inc. (“Phoenix”) pursuant to the execution of the Interim Investors Agreement inter alia between Phoenix, EQT Investors and GS Investors; and Agreement and Plan of Merger inter alia between Phoenix, Phoenix Merger Sub Limited and Parexel Investment (...)

Charanya Lakshmikumaran, Aditya Bhattacharya, Neelambera Sandeepan, L. Badri Narayanan The Indian Competition Authority clears the purchase by a Dutch healthcare provider of the healthcare outsourcing arm of a national healthcare company (Betaine / HGS)

56

A notice was given pursuant to execution of a Master Framework Agreement, inter alia, between Betaine B.V. (“Acquirer”) and Hinduja Global Solutions Limited (“HGS/ Seller”), and India Business Transfer Agreement between HGS and Betaine. The notice envisages the acquisition of 100% interest in the (...)

Charanya Lakshmikumaran, Aditya Bhattacharya, Neelambera Sandeepan, L. Badri Narayanan The Indian Competition Authority clears acquisition of an investment management company by an online trading platform (Nextbillion / Indiabulls)

69

Nextbillion Technology Private Limited (“Acquirer/Nextbillion”), and Indiabulls Asset Management Company Limited (“Indiabulls AMC”) and Indiabulls Trustee Company Limited (“Indiabulls Trustee”), collectively (“Targets”), jointly filed a notice pursuant to execution of Share Purchase Agreement between (...)

Neelambera Sandeepan, Aditya Bhattacharya, Charanya Lakshmikumaran, L. Badri Narayanan The Indian Competition Authority unconditionally approves takeover of a national ICT distribution company by competitor (Savex Technologies / Inflow Technologies)

68

A notice was filed by Savex Technologies Private Limited, India (“Savex/ Acquirer”) pursuant to Share Purchase Agreement executed between Savex, Inflow Technologies Private Limited, India (“Inflow”) and the existing shareholders of Inflow; and Shareholders Agreement executed between Savex, Inflow (...)

Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, L. Badri Narayanan, Rishabh Chopra The Indian Competition Authority unconditionally clears a merger between two energy companies (Odisha Power / Adani Power)

16

This article has been nominated for the 2021 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. Adani Power Ltd. (“APL”) is a public listed company primarily engaged in the business of power generation by using coal based thermal power plants. APL directly (...)

Neelambera Sandeepan, Charanya Lakshmikumaran, Rishabh Chopra, L. Badri Narayanan, Aditya Bhattacharya The Indian Competition Authority opens an investigation into potential anti-competitive conduct by a company engaged in the manufacturing and sale of commercial vehicles (Tata Motors)

217

KEY POINTS Even if there is a delay in the filing of information on behalf of the informants, the Act does not envisage any period of limitation as inquiries conducted by CCI are proceedings in rem. There can be no limitation period in competition law as in a changing and evolving market (...)

Neelambera Sandeepan, Charanya Lakshmikumaran, Rishabh Chopra, L. Badri Narayanan, Aditya Bhattacharya The Indian Competition Authority dismisses a complaint against two regional development authorities and clarifies that a statutory body exercising economic functions cannot be guilty of abuse of dominance for policy-making decisions which apply equally to all market participants (Greater Noida Industrial Development Authority / New Okhla Industrial Development Authority)

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KEY POINTS A statutory body exercising economic functions can not be said to have abused its dominant position in a particular relevant market for any decisions taken as part of the policy-making process, which apply equally to all market participants. BRIEF FACTS Three separate informations (...)

Neelambera Sandeepan, Charanya Lakshmikumaran, Rishabh Chopra, L. Badri Narayanan, Aditya Bhattacharya The Indian Competition Authority dismisses antitrust complaint against a paint manufacturer because simply filing a criminal complaint against its competitor is not considered abuse of dominance (Asian Paints)

202

KEY POINTS Filing a criminal complaint against another enterprise in the same sector cannot be said to have been done with a view to oust competition from the relevant market in the absence of any additional evidence to indicate contraventions of Section 3 and/or 4 of the Act. BRIEF FACTS (...)

Neelambera Sandeepan, Charanya Lakshmikumaran, Rishabh Chopra, L. Badri Narayanan, Aditya Bhattacharya The Indian Competition Authority dismisses complaints against the State of Tamil Nadu’s road department on an alleged anticompetitive tender process because sufficient bids were received and the procurement process was found to benefit both the procurer and the public (Trichy Superintendent Engineer of Highways Department)

324

KEY POINTS The consumer, based on his requirements / commercial considerations, has the freedom to specify and choose the kind of service, machineries, timelines, mode, and the manner in which it requires the same, provided that no provision of the Act is violated. The public procurement (...)

Neelambera Sandeepan, Charanya Lakshmikumaran, Rishabh Chopra, L. Badri Narayanan, Aditya Bhattacharya The Indian Competition Authority finds an abuse of dominance in the market for wholesale procurement of branded alcoholic beverages within the State of Uttarakhand (International Spirits and Wines Association of India / Uttarakhand Agricultural Produce Marketing Board)

208

KEY POINTS Cutting off supply/distribution of particular brands, thereby allowing market access to only a dominant entity leads to abuse of its dominant position by such entity. An effective push to competition happens when the efficiency of slower-moving products is enhanced such that a (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority initiates an investigation into a Big Tech company’s new privacy policy and user agreement that does not let users opt out (WhatsApp)

71

KEY POINTS CCI is empowered to initiate an investigation into any conduct which may contravene the provisions of the Act if the CCI knows that such conduct is about to be committed. The CCI is obligated to prevent practices from having an adverse effect on competition. BRIEF FACTS CCI (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority dismisses allegations of cartelization within a professional association in the corrugated box manufacturing industry (Gujarat Paper Mills Association / Indian Corrugated Case Manufacturers’ Association)

32

KEY POINTS A no presumption of appreciable adverse effect on competition (“AAEC”) cannot arise without first establishing the existence of an agreement in terms of the provisions Act. BRIEF FACTS An information was filed before CCI by the Gujarat Paper Mills Associations (“GPMA / Informant”), (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority finds evidence of and imposes a fine for bid-rigging by three sewing machine suppliers in public procurement for Picofall-cum-Sewing Machines (Klassy Computers / Nayan Agencies / Jawahar Brothers)

41

KEY POINTS (i) Although CCI and the DG have the powers to investigate the representatives of the tenderer/procurer to understand and ascertain the tender design, tendering mechanism including the eligibility of the bidders in terms of tender conditions by requisitioning the relevant records. (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority grants interim relief, ordering online travel agencies to re-list hotel properties on certain platforms (MMT-Go / Treebo / FabHotels)

59

KEY POINTS (i) In deciding applications for interim relief under Section 33 of the Act, CCI must form a higher degree of satisfaction than the prima facie requirements under Section 26(1) of the Act. (ii) Denial of market access need not be complete or absolute in nature to result in an (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority fines a national publishing association for restricting its members’ maximum discounts and participation in procurement advertisements (Federation of Publishers’ and Booksellers’ Associations in India)

37

KEY POINTS The practice of restricting the maximum discount and issuing advisories for members to not participate in certain procurement advertisements amounts to anti-competitive conduct, especially if coercive action is taken by the governing body to ensure adherence by its members. BRIEF (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority orders closure of an investigation into the alleged cartelization in the airlines industry because the observed price parallelism was not proven to have occurred through cartelization (Jet Airways / Indigo / Spice Jet / Go Air / Air India)

41

KEY POINTS Mere price parallelism does not amount to cartelization, if: (i) the market prices have fluctuated, at times with significant margins, (ii) new players are easily able to establish themselves; (iii) all players offer more or less similar kinds of services, and (iv) the prices depend (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority finds upon further investigation no evidence of bid-rigging in tenders submitted to the Government Department of Printing for the services of printing, packing and dispatch of confidential documents (Chandraprabhu / Saraswati Offset Printers / United India Tradex)

39

KEY POINTS (i) The mere fact that participants to a tender have common directors/shareholders is not sufficient evidence to return a finding that the parties are engaging in bid-rigging. (ii) Commercial transactions between related parties, such as sale/purchase of goods and loan exchanges, (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority dismisses allegations of abuse of dominance by a Delhi based mall developer for absence of dominance in the relevant market (Buildwell / Classic Care Utilities)

33

KEY POINTS An inquiry into whether certain practices by a firm amount to abuse is not required to be undertaken when the concerned firm does not hold a dominant position in the relevant market by virtue of there being other prominent firms within the relevant market that provide the same (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority dismisses allegations of abuse of dominance against a Big Tech company for integrating a video calling app into its email app, because email users were not forced to use the video app (Google Meet)

52

KEY POINTS Merely adding more functionality to an internet-based app in the name of product improvement and enhancing benefit to consumers would not amount to leveraging dominance if the users are not compelled to utilize the new features to the exclusion of all other services offering similar (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority dismisses allegations of cartelization and abuse of dominance by a provider of home loan services (ICICI Bank)

37

KEY POINTS Existence of large number of players in the home loan market shows that ICICI Bank (“ICICI”) cannot operate independently in the market and, hence cannot be considered to be in a position of dominance in the relevant market. In the absence of any evidence indicating an agreement or (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority dismisses allegations of abuse of dominance by a reinsurance company as its client insurance companies retain the freedom to decide their premium rates as well as their reinsurer under national law (Automotive Tyres Manufacturers Association / General Insurance Corporation of India)

52

KEY POINTS The markets for insurance and reinsurance exist as separate markets and insurance companies have the commercial freedom to price their policies as they deem fit according to the market conditions and decisions taken in the reinsurance market do not place any restriction on insurance (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority holds that the national statutory body in charge of carrying out regulatory functions in respect of the legal profession as well as legal education is not an ‘enterprise’ within the definition of the competition law (Bar Council of India)

41

KEY POINTS An entity falls within the definition of the term ‘enterprise’ only if it is engaged in any economic and commercial activity specified within Section 2 (h) of the Act. BRIEF FACTS An information was filed before CCI alleging contravention of the provisions of Section 4 of the Act by (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority conditionally approves a merger between fashion retailers (Aditya Birla Fashion and Retail / Flipkart Investments)

55

Aditya Birla Fashion and Retail Ltd. (“ABFRL / Target”) is a public limited company incorporated under the Companies Act, 1956. ABFRL is engaged in the business of manufacturing and retailing branded apparels, footwear and accessories, through its retail stores, multi-brand outlets, departmental (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority approves a merger between a healthcare company and a hospital network as the merger is unlikely to raise anticompetitive concerns (Manipal Health Enterprises / Columbia Asia Hospitals)

35

Manipal Health Enterprises Private Ltd. (“MHEPL / Acquirer”) is part of the Manipal Educational and Medical Group which operates a network of hospitals providing multi-speciality care. Manipal Group has 15 hospitals spread across 7 cities in India under the brand name ‘Manipal Hospitals’. Outside (...)

Charanya Lakshmikumaran, L. Badri Narayanan, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority carries out dawn raids at the offices of major cement manufacturers (UltraTech Cement / Shree Cement / Ambuja Cement / ACC / Dalmia Cement / Rockstrong Cement)

21

On December 9th, 2020, the DG carried out dawn raids at the offices of top cement manufacturing companies, including UltraTech Cement, Shree Cement, Ambuja Cement, ACC, Dalmia Cement, and Rockstrong Cement, over allegations of price coordination and collaborating levels of cement supply. The (...)

Charanya Lakshmikumaran, Neelambera Sandeepan, L. Badri Narayanan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority announces amendments to the merger regulations and removes the obligation to disclose non-compete clauses

19

The Commission announced that it has done away with disclosure requirements relating to non-compete covenants at the time of entities seeking approval for merger deals. Therefore, parties filing a notice for combinations before the CCI will not be required to give separate details regarding (...)

Rishabh Chopra, Aditya Bhattacharya, Neelambera Sandeepan, Charanya Lakshmikumaran, L. Badri Narayanan The Indian Competition Authority dismisses claims of rotational allegations of bid rigging against an American wine supplier (Lakeforest Wines)

19

KEY POINTS Mere contravention of tender policies does not imply a contravention of Section 3(3) of the Act, unless there is additional material to substantiate allegations of collusion. Brief facts A Reference was made to CCI under Section 19(1)(a) of the Act, against Lakeforest Wines (...)

Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra, L. Badri Narayanan The Indian Competition Authority dismisses allegations of bid rigging against printing companies clarifying that the tenderer may choose which brands to invite for the tender (Security Printing and Minting Corporation of India / Security Paper Mill)

15

Key points CCI opined that a tenderer inviting bids only from certain brands does not amount to abuse of dominance by the tenderer. The tenderer has the right as a consumer to choose which brands can apply for the tender. Brief facts Information was filed with the CCI under Section 19(1) (a) (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority approves a merger between two power generation companies as the proposed combination is unlikely to cause any competition concerns (Greenko Energy Holdings / Orix)

42

Greenko Energy Holdings (“GEH / Party No. 1”) is a company limited by shares incorporated in Mauritius, engaged principally in the business activity of investment holding. It is the holding company of the Greenko Group of Companies (“Greenko”). GEH has an Indian subsidiary which is primarily (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority launches an investigation into allegations of abuse of dominance by a Big Tech company in the Android app store market (Google)

72

KEY POINTS Even in cases where an information is filed anonymously before the Competition Commission of India (“CCI”), it is within the powers of the Director General (“DG”) to cross-examine the informant; Googles’ market position in the android app market provides it with a significant market (...)

Charanya Lakshmikumaran, Neelambera Sandeepan, L. Badri Narayanan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority dismisses allegations of abuse of dominance by a real estate development company due to lack of dominance and existence of other active cases with the same parties (Uppal Chadha Hi-Tech Developers)

21

Key points Unilateral and unfair conduct by an entity cannot be a subject of investigation by the CCI in the absence of dominance. However, consumers can still reach out to the consumer forum for seeking relief against unfair practices of enterprises Brief facts An information was filed (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Supreme Court dismisses the Competition Authority’s special leave petition against the Karnataka High Court’s stay on investigations against two online shopping platforms for alleged anticompetitive conduct in the mobile phone market (Amazon / Flipkart)

44

A three-judge bench of the Supreme Court on October 26, 2020 rejected the CCI’s challenge to the Karnataka HC’s stay on the investigations directed by the CCI against Amazon and Flipkart. In January, 2020, the CCI has ordered investigation into allegation of, inter alia, exclusive arrangements, (...)

Charanya Lakshmikumaran, L. Badri Narayanan, Neelambera Sandeepan, Aditya Bhattacharya The Indian Competition Authority dismisses allegations of bid rigging against an aluminium and copper manufacturer (Hindalco / Vedanta)

20

Key points While the standard of evidence required to be provided by an informant is not very high, however, the CCI’s resources cannot be used to further open-ended bald allegations in an omnibus manner which do not further the public cause. In the absence of any material showing even prima (...)

Charanya Lakshmikumaran, L. Badri Narayanan, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority closes investigation against an alleged phenol importers cartel after not finding evidence with 12 out of 19 parties which account for 95% of the market (Deepak Phenolics / Chemtrade Overseas / Shubham Chemicals & Solvents)

22

Key points To conduct an investigation in a time bound manner, out of the 19 phenol importers, the DG investigated 12 that accounted for 95% of the total sales volume of phenol. In the absence of any evidence indicating an agreement or meeting of minds amongst the phenol importers, a mere (...)

Charanya Lakshmikumaran, Neelambera Sandeepan, L. Badri Narayanan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority clears a merger between silk and polyester manufacturers (Garden Silk Mills / MCPI Polyester)

13

MCPI Pvt. Ltd. (“MCPI”) is part of The Chatterjee Group (“CG”) and is engaged in the business of manufacturing and supply of Purified Terephthalic Acid (“PTA”). MCPI has a wholly owned subsidiary, MCPI Polyester Pvt. Ltd. (“MCPI Polyester”), a newly incorporated entity which currently does not have any (...)

Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, L. Badri Narayanan, Rishabh Chopra The Indian Competition Authority clears a merger between a global chemical company and a fragrance producer (International Flavors & Fragrance / DuPont)

26

International Flavors & Fragrances Inc. (“IFF”) is a public company, listed on the New York Stock Exchange, the Tel Aviv Stock Exchange, the Euronext Paris, and is based in New York City, United States of America. IFF is active worldwide in the development, creation, and sale of flavours and (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority dismisses abuse of dominance allegations against a Big Tech company for entering into exclusive agreements due to the company not being dominant in the market for online fashion retailing (Lifestyle Equities / Amazon)

49

KEY POINTS Anti-competitive agreements and abuse of dominance issues against e-commerce platforms ought to be analyzed individually in respect of each product on a case-by-case basis. In the absence of dominance, issues of sale of counterfeit products on an e-commerce platform do not raise (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority dismisses an allegation of abuse of dominance resulting from the termination of a dealership agreement by a manufacturer of motorcycles and scooters due to lack of dominance (India Yamaha Motor)

33

KEY POINTS An alleged illegal termination of a dealership agreement by a manufacturer who does not command a dominant position does not attract the abuse of dominant position provisions of the Competition Act. BRIEF FACTS Vijay Chaudhary (“Dealer”) was an authorised dealer of India Yamaha (...)

Charanya Lakshmikumaran, Neelambera Sandeepan, L. Badri Narayanan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Company clears the acquisition of minority shareholdings in multiple national companies by an alternative investment fund (LGTA / Ascent / Lokprakash / Aahaan / 91Streets)

18

Lightstone Fund S.A. (“Lightstone”), is an alternative investment fund incorporated in Luxembourg, that was established as an umbrella fund structure with initially one sub-fund, i.e. Lightstone Global Fund (“LGF”). Lightstone does not have any direct presence in India. Lightstone is managed by its (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority dismisses abuse of dominance allegations against a retirement home company due to lack of dominance, but notes the parties may direct their grievances to sectoral regulators (Ashiana Housing)

45

KEY POINTS Within the real estate sector, different categories of residential properties are not necessarily substitutable and therefore form separate relevant markets. Further, certain industrial practices though not within the realm of the CCI may require regulatory intervention. BRIEF (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority finds no dominance and therefore dismisses a case against a public transport company for alleged abuse of dominance in the parking services sector (Delhi Metro Rail)

32

KEY POINTS A government-owned corporation is an enterprise within the meaning of the Competition Act if it engaged in economic activity and can be investigated for violation of provisions of the Competition Act. BRIEF FACTS Dhiraj Gupta, a sole proprietor secured the license for parking (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority dismisses allegations of anticompetitive conduct and abuse of dominance against an information technology company in public procurement by the Ministry of Railways due to lack of evidence (Sowil / Hexagon Geosystems India)

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KEY POINTS In the absence of any material on record which can suggest collusion, no case of anti-competitive agreement can be made out. In addition, for a case of abuse of dominance, one must take into consideration the market structure and the number of major players including, global players (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority dismisses abuse of dominance claims against two online platforms and clarifies that bundling products is not necessarily tying so long as consumers can choose to not use the bundled products (Harshita Chawla / WhatsApp / Facebook)

35

Key Points The mere fact that a case has been filed by an aggrieved party under the Act, does not take away its character of being a case in rem involving a larger question of fair and competitive markets. This leads to the inevitable conclusion that the informant need not necessarily be an (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Central Board of Direct Taxes authorizes income tax authorities to share information with the Competition Authority

24

On July 30, 2020, the Central Board for Direct Tax (“CBDT”) amended notification S.O. No. 731 (E), originally issued on July 28, 2000, which specifies the terms and conditions for the disclosure of information to any officer, authority or body in regards with imposition of any tax, cess or duty (...)

Rishabh Chopra, Aditya Bhattacharya, Charanya Lakshmikumaran, Neelambera Sandeepan, L. Badri Narayanan The Indian Competition Authority clears a merger between multiple national port operators (Adani Ports / Krishanapatnam Engineering)

19

Adani Ports and Special Economic Zones Ltd. (“Adani Ports”) is a private sector port operator, currently having presence in six maritime states in India viz. Gujarat, Goa, Kerala, Andhra Pradesh, Tamil Nadu and Odisha through 10 ports, where it provides (i) full marine services including piloting (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Ministry of Electronics and Information Technology proposes a framework for regulating non-personal data

35

Even as the Personal Data Protection Bill (“PDP Bill”) continues to be analyzed by a joint parliamentary committee, in consultation with experts and stakeholders, an expert committee constituted by MeitY has recommended a framework for regulating NPD which involves the creation of a new national (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority refuses to penalize railway companies for bid-rigging due to economic downturn caused by COVID-19 (Chief Materials Manager, South Eastern Railway / Hindustan Composites)

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KEY POINTS While the CCI found sufficient evidence to hold that there existed a contravention of Section 3(3) of the Act, given the economic downturn due to the pandemic faced by Micro Small and Medium Enterprises (“MSMEs”) in India, and other public interest considerations, the CCI imposed no (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority dismisses abuse of dominance claims after a manufacturing company issues a public notice of its trademark rights arising from the corporate insolvency resolution process (Prashant Properties / SPS Steel Rolling Mills)

19

Key Points To bring an allegation of abuse of dominance before CCI, the informant ought to show that some right it possessed had been infracted by the conduct of the opposite party in terms of Section 4 of the Act. An announcement made in the newspapers as a public notice is merely a (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority dismisses abuse of dominance claims against the national highway authority based on the eligibility criteria stipulated in a request for tenders (Sandeep Mishra / National Highway Authority of India)

17

Key Points It is the prerogative of the procurer / buyer to decide technical specifications in the tender document as per its requirement. Such specifications would only be subject to the provisions of the Act if the tender document framed by a dominant entity contained provisions which were (...)

Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra, L. Badri Narayanan The Indian Competition Authority dismisses abuse of dominance claims against an online food ordering platform due to proof that the platform actually tried to resolve price disparities between itself and physical locations of its partners whenever it received a complaint (Swiggy)

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KEY POINTS Swiggy does not select or modify the rates charged by its partner restaurants and therefore, any discrepancy in the rates is solely attributable to the partner restaurants. BRIEF FACTS An Information was filed under Section 19(1)(a) of the Act, alleging that the popular app-based (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority refrains from imposing fines on four industrial and automotive bearings manufacturers for being part of a cartel (ABC Bearings / National Engineering Industries / Schaeffler / SKF / Tata Steel)

29

Key Points The existence of an agreement between four industrial and automotive bearings manufacturers was established in relation to price revision as well as minimum percentage of price increase to be quoted to automotive and industrial Original Equipment Manufacturer (“OEM”) customers. The (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority confirms that a merger between two automotive companies has no effect on competition in the country (Fiat Chrysler / Peugeot)

23

Peugeot is a publicly listed limited liability corporation, incorporated in France, as the holding company of a French-based group, which is mainly an OEM and dealer of motor vehicles, passenger cars as well as light commercial vehicles (“LCV”) under the brands Peugeot, Citroën, Opel, Vauxhall and (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian National Company Law Appellate Tribunal admits compensation application filed against two agrochemicals companies for bid-rigging (Food Corporation of India / Excel Corp Care / Sandhya Organic Chemicals)

22

Key Points Limitation period for filing an application for compensation under Section 53N(1) of the Competition Act starts only after the CCI order attains finality upon determination of the final round of appeal, whether it be before the appellate tribunal or the Supreme Court. Brief Facts (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian National Company Law Appellate Tribunal dismisses appeal against two ride sharing platforms for price-fixing (Uber / Ola)

20

Key Points The Competition Act specifically provides the modes by which the CCI may take cognizance of allegations of contravention of the Competition Act. An information concerning any allegations may be filed before CCI under Section19(1)(a) of the Competition Act, only by a person who has (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority approves the acquisition of a cement manufacturer by relying on past cases to determine the substitutability of various types of cements and their relevant product and geographical markets (Emami Cement / Nuvoco Vistas)

19

NVCL, a public limited company incorporated in India, is part of Nirma promoter group company. It is stated to be engaged in the businesses of manufacturing and sale of varieties of grey cement including portland pozzolana cement (“PPC”), portland slag cement (“PSC”) and ordinary portland cement (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority approves a merger between a holding company and a tech company due to the lack of appreciable adverse effect of competition (Tech Data / Tiger Midco)

13

TM is a special purpose vehicle (“SPV”) set up and managed by investment funds managed by affiliates of Apollo Management, L.P. (collectively referred to as (“Apollo”). Apollo invests in equity and debt issued by entities involved in businesses such as chemical, hospital, security, insurance, (...)

Charanya Lakshmikumaran, Neelambera Sandeepan, L. Badri Narayanan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority approves a Big Tech company’s minority investment in a national telecommunications firm (Facebook / JIO Platforms)

28

Jaadhu Holdings LLC (“Jaadhu”), is an indirect wholly owned subsidiary of Facebook Inc. (“Facebook”), incorporated in the state of Delaware, USA.1 Jio Platforms Ltd. (“Jio”), a subsidiary of Reliance Industries Ltd (“RIL”). Jio owns and operates digital applications and holds controlling investments in (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority approves a merger between two pharmaceutical companies due to the presence of larger players in the market and the non-existence of complimentary relationship between the two companies (Mylan / Upjohn)

21

Mylan is a global pharmaceutical company incorporated in Netherlands, having a broad portfolio of products sold in 165 countries. Mylan is present in India through three registered entities namely – Mylan Laboratories Ltd. (“MLL”), Mylan Pharmaceuticals Pvt. Ltd. (“MPPL”) and Mylan Laboratories (...)

Charanya Lakshmikumaran, Neelambera Sandeepan, L. Badri Narayanan, Aditya Bhattacharya The Indian Competition Authority fines the only national manufacturer of Viscose Staple Fiber for abusing its dominant position by practicing price discrimination without objective justification (Grasim Industries / Association of Man Made Fibre Industry of India)

42

Grasim Industries fined INR 302 crore for abusing its dominant position in the market for Viscose Staple Fiber (“VSF”) by the CCI* Key points A dominant entity has a special and differential obligation and ought to behave as a responsible corporate citizen. Discriminatory prices for similarly (...)

Charanya Lakshmikumaran, Neelambera Sandeepan, L. Badri Narayanan, Aditya Bhattacharya The Indian National Company Law Appellate Tribunal upholds the Competition Authority’s order dismissing allegations of abuse of dominance in the market for industrial bearings (Asmi / SKF)

40

KEY POINTS Given that the conduct related to a period prior to May 20, 2009, the CCI had no jurisdiction to investigation. Further, during the concerned period, none of the players in the relevant market enjoyed a position of strength for a long duration. Even thereafter, in 2015-16, domestic (...)

Charanya Lakshmikumaran, Neelambera Sandeepan, L. Badri Narayanan, Aditya Bhattacharya The Indian Competition Authority orders pharma companies and trade association to cease and desist from indulging in anti-competitive business practices (Alkem Laboratories / McLeod’s Pharmaceuticals / Bengal Chemists and Druggists Association)

20

KEY POINTS The CCI recognised that there is rarely any direct evidence of action in cases involving concerted action. It is normal for agreements relating to such activities to be entered into in a clandestine manner. In such situations, the evidence is limited, fragmentary and sparse. Hence, (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority approves the acquisition of additional equity shares in a financial company by two existing shareholders to avoid dilution (Hero / Otter / Link)

25

HFL, is a non-deposit taking non-banking financial company registered with the Reserve Bank of India (“RBI”). It is primarily engaged in the businesses of consumer finance and different types of commercial lending. Otter is an investment company incorporated in Mauritius and controlled by (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority finds that the acquisition of two power suppliers by an energy conglomerate has no appreciable adverse effect on competition (THDC / NEEPCO / NTPC)

19

NTPC is a public company incorporated in India under the administrative control of the Ministry of Power, Government of India (“GoI”). NTPC is an energy conglomerate primarily engaged in electric power generation through coal-based thermal power plants, generation of electricity from hydro and (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority conditionally approves a merger between two auto parts manufacturers (Wabco / ZF)

21

ZF is a global technology company, headquartered in Germany which develops, manufactures and distributes products and systems for passenger vehicles (“PVs”), commercial vehicles (“CVs”), o- highway vehicles (“OHVs”) and industrial technology. ZF is present in India by way of its various subsidiaries (...)

L. Badri Narayanan, Charanya Lakshmikumaran, Neelambera Sandeepan, Aditya Bhattacharya, Rishabh Chopra The Indian Competition Authority unconditionally approves a joint venture between two car manufacturers (Mahindra & Mahindra / Ford)

27

The CCI has approved the formation of a JV between M&M and FMC and the transfer of the automotive business of Ford India Private Limited (“FIPL”) to the JV. As per the business transfer agreement (“BTA”), the business of FIPL, other than certain assets relating to its powertrain business, will (...)

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