In Re

COMPETITION COMMISSION OF INDIA
Case No. 103 of 2016
In re:
1. Aditya Automobile Spares Private Limited

9/435, Cross Cut Road,
Coimbatore - 641012 , Tamil Nadu Informant No. 1
2. Rajkrishna Aditya Auto Store Private Limited

99-100, Srikant Extension,
Grey Town,
Coimbatore – 641018, Tamil Nadu Informant No. 2
3. Aditya Auto Store

406, Dr. Nanjappa Road,
4. Aditya Global Trading

9/431, Cross Cut Road,
And
Kotak Mahindra Bank Ltd.

27 BKC, C 27, G Block,
Bandra-Kurla Complex, Bandra (E),
Mumbai – 400051, Maharashtra Opposite Party
Case No.103 of 2016 Page 1 of 9

11. It is submitted that the Informants have also filed a consumer complaint (No.
1512 of 2015) before the National Consumer Disputes Redressal Commission
(NCDRC) against the OP which is pending.
12. It is submitted that the Informants have suffered a loss of Rs. 1,66,63,669/- till
date and the OP should pay the same and such other sum to the Informants as
the Commission shall deem fit and proper taking into account the facts and
circumstances of the present case. The Informants have also prayed the
Commission to pass such other order(s) as deemed fit and proper under the
facts and circumstance of the case.
13. The Commission has perused the information and material available on
record.
14. The Commission observes that the Informants are primarily aggrieved by the
conduct of the OP in denying enhancement of various credit limits, reduction
in interest rates and delay in the handing over of the documents/ title deeds
mortgaged with it back to the Informants for making a switch over to the
Syndicate Bank for availing various banking services/ facilities. The
Informants are also aggrieved with the conduct of the OP in debiting Rs.
32,41,750/- as penal interest in an arbitrary manner without informing them.
The Informants have alleged contravention of the provisions of Section
4(2)(a)(ii) and 4(2)(c) of the Act in the matter.
15. The Commission observes that the allegations raised in the instant matter
relates to various types of banking services/ facilities viz. cash credit, bank
guarantee and term loan facility availed by the Informants from the OP. It is
observed that the allegations in the instant case do not relate to any specific
banking facilities availed by the Informants from the OP, but rather to a
broader spectrum of banking services/ facilities offered by the OP. Thus, the
relevant product market in this case cannot be narrowed down to a specific
banking service/ facility such as term loan, bank guarantee, cash credit etc.
Rather, it should be the broader market of banking services. Further, it is
pertinent to note that the impugned banking services are provided by the OP
not only to the Informants but also to different corporate entities for their
business operations. It may be noted that the banking services provided to
corporate entities cannot be considered as a substitute with the banking
services available for the retail/ general customers. Even though the
nomenclature of the banking services/ facilities provided to the retail/ general
customers and corporate entities are same, the characteristics of the banking
services/ facilities differ between the two groups. It may be noted that banks
on the basis of various verticals or indicators like demand requirements, credit
worthiness, expected profitability of the proposed business venture etc. make a
clear-cut distinction between corporate customers and general customers.
Even if two entities are operating a similar class of account, say current
account, the facilities offered to such accounts differ from customer to
customer. Further, the accounts used for business purposes/ corporate entities
also differ from the accounts used by normal customers. In view of the above,
the relevant product market in the present case may be considered as the
market for the “provision of banking services for corporate entities”.
16. With regard to the relevant geographic market, the Commission is of the view
that the conditions of competition for availing banking services by the
corporate entities throughout India are homogenous. A corporate entity can
avail the banking services/ facilities from any bank operating anywhere in
India. Further, core banking facility enables the bank customers to operate
their accounts from any place in India without any hurdle. Therefore, the
Commission is of the view that the relevant geographic market in this case
may be taken as ‘India’.
17. Based on the above, the Commission defines the relevant market in this case
as the market for the “provision of banking services for corporate entities in
India”.

(Combination Registration No. C-2017/08/523)
Dated: 14.06.2018
Notice under sub-section (2) of Section 6 of Competition Act, 2002

given by Bayer AG
CORAM:
Mr. Devender Kumar Sikri

Chairperson
Mr. Sudhir Mital

Member
Mr. Augustine Peter

Member
Mr. U. C. Nahta
Member
Mr. G. P. Mittal
Member
Legal Representatives of Bayer AG: Luthra & Luthra Law Offices
Order under Section 31(7) of the Competition Act, 2002
INTRODUCTION
1. On 07.08.2017, the Competition Commission of India (hereinafter referred to as the

“Commission”) received a notice under sub-section (2) of Section 6 of the Competition
Act, 2002 (“Act”) given by Bayer Aktiengesellschaft (“Bayer” / “Acquirer”). The notice
C-2017/08/523 Page 1 of 99
market as its competitors are not able to provide effective competitive constraints and
consumers are dependent on it.
72. It is also noted that Monsanto also has Bollgard III i.e. three gene Bt cotton technology,
which was launched in Australia in 2016. Monsanto is in the process of obtaining
regulatory approvals for launching Bollgard III in India. In relation to this approval
process, the Acquirer has submitted that the application is currently on hold for some
technical reasons.
73. In relation to the contention of the Acquirer that it is not present in the relevant market, it
is noted that globally, Bayer offers its TwinLink (two gene Bt. cotton technology) and
TwinLink Plus (three gene Bt cotton technology) which deliver Bt. protection against
pests and contain a multiple of Bayer’s proprietary Bt. genes that provide effective
management of major lepidopteran pests. As per the information submitted, Bayer has
also earlier pursued obtaining regulatory approvals for its GlyTol LibertyLink TwinLink
Plus (“GLTP”) trait package which would be in direct competition to Bollgard III of
Monsanto.
74. It is further noted that Bayer and Monsanto are the major players in the transgenic
(‘Genetically Modified’) cotton seed market. Monsanto has a strong position in herbicide
tolerant (HT) and insect resistance (IR) transgenic traits, e.g. in the US […]. Bayer is the
only other competitor with both herbicide tolerant and insect resistance traits in cotton
(GlyTol for glyphosate tolerance, LibertyLink for glufosinate tolerance, TwinLink for
insect resistance). The Proposed Combination would, therefore, eliminate the only
potential competitor from the market and the Combined Entity would have significant
trait penetration in cotton seeds that could lead to the exit of the remaining players and
hence to a monopoly.
75. Though, it has been submitted that Bayer discontinued the development of GLTP for the
Indian market due to several reasons, the Commission is of the view that Bayer is one of
the few potential competitors who has the capability to effectively constrain Monsanto in
C-2017/08/523 Page 22 of 99
this market. In the absence of the Proposed Combination, Bayer would have incentive to
introduce both the two gene and three gene Bt. cotton technologies and Monsanto would
have incentive to introduce BG III technology, in India. However, the Proposed
Combination is likely to reduce the incentive of the Combined Entity to introduce the
competing Bt. cotton technologies in India, thereby completely eliminating the
competition between the two. The Proposed Combination would result in strengthening
of the existing significant position of Monsanto in the market.
76. Further, it is observed that any GM technology in the market has to first go through
rigorous research, development and testing and then seek regulatory approvals, which
takes around 7-10 years. Further, developing such technology involves cost implications
and is subject to regulatory approvals, which create significant entry barriers. The
Commission also notes that apart from the Parties, only DowDuPont (with a competing
technology i.e. WideStrike) is in process of seeking regulatory approvals for
commercialisation of its competing technology in India whereas other competitors are
still developing their respective two gene technologies.
77. In view of the foregoing, the Commission is of the view that the Proposed Combination is
likely to result in AAEC in the relevant market for licensing of Bt. trait for cotton seed in
India.
Downstream market of commercialization of Bt. cotton seed in India
Horizontal Overlap
78. As already stated, both Parties are active in the downstream market for commercialization
of Bt. cotton seed in India. The market share of Bayer is approx. [0-5] per cent whereas
that of Monsanto (along with Mahyco) is approx. [5-10] per cent. As per the information
given by Bayer, its Bt. Cotton business in India is based on Monsanto’s Bollgard
platform. The major players in this market are Nuziveedu Seeds ([15-20] per cent),
C-2017/08/523 Page 23 of 99
a4 Competition Commission of India Doi: 10.54425/ccijoclp.v2.37
( ; 4 Journal on Competition Law and Policy Vol. 2, December 2021, pp. 1-44
Behavioural Remedies in
Oligopolistic Markets under the
Indian Merger Control Regime
Pemala Lama! and Priya Bansal?
Abstract
Competition authorities primarily make use of two types of remedies,
namely, “structural” and “behavioural,” or a combination of the two!,
before clearing mergers that are likely to cause substantial harm to
competition. Of these, structural remedies have been the predominant
choice. However, of late, in the wake of the digital revolution and greater
emphasis on designing remedies on a case-by-case basis, behavioural
remedies have witnessed increased use. To this end, this paper seeks
to address the role of behavioural solutions in the oligopolistic market
structure under Indian competition law, with a focus on the merger control
regime. It also intends to understand and critically analyse the literature
on the problem of oligopolistic markets and the approach adopted with
respect to remedies employed by the competition authorities of various
jurisdictions (including the European Union (EU), the United States of
America (USA), Canada, South Korea, Brazil, and India) to address the
problem. Furthermore, the paper aims to examine the scope and limitations
of behavioural remedies and their potential role in the conditional
clearance of mergers. We use the number and nature of merger control
investigations in the aforementioned jurisdictions in which behavioural
remedies were adopted during 2015-19 to examine the conditions under
which these remedies were used. The findings indicate that there is no
1Deputy Director, Economics Division, Competition Commission of India;

[email protected]
?Research Associate, Economics Division, Competition Commission of India;
priya. [email protected]
Os Competition Commission of India Journal on Competition Law and Policy
Falr Competition
for Greater Good
2.2 Role of Behavioural Remedies in the Merger Control

Regime
The need for a remedy arises when competitive harm is likely to emanate
from the merger; accordingly, the type of the remedy depends on the
nature of competitive harm. The purpose of a remedy is to maintain or
restore competition, and it should be directed at and proportionate to
address competitive harm.
While most competition authorities prefer structural remedies, a few
are relatively open to the use of behavioural remedies. Such preference
is justified by the fact that structural remedies are more likely to restore
rivalry while behavioural remedies may end up creating distortions in
market outcomes.
In contrast to the permanent one-off nature of structural remedies, it is
important to note that behavioural remedies pose certain limitations, i.e.,
they primarily reveal two important weaknesses of the merger control
regime: the risk of over- and under-enforcement. However, despite these
drawbacks, behavioural remedies can play a significant role, especially
when the absence of a suitable buyer makes divestiture impossible. Even
when divestiture is possible, behavioural remedies may be more effective
when the merger comprises vertical elements that may limit access to
infrastructure, eventually resulting in foreclosure.
Ezrachi (2006) discusses two types of errors by competition agencies
while assessing a merger transaction: a Type I error, which occurs when
a beneficial transaction is prohibited, thus depriving the market of
attaining associated efficiencies, and a Type II error, which occurs when a
harmful transaction is not detected and is consequently cleared, resulting
in competitive detriment. The difficulties in designing, monitoring, and
enforcing behavioural remedies may lead to under prescribing them even
when, in theory, they may yield efficiencies.
Different competition jurisdictions have diverse views on the scope
and categorisation of behavioural remedies. The EU Merger Remedies
Notice confers access remedies under “Other Remedies” and _ refers
to the granting of access to key infrastructure or inputs as a structural
STRUCTURAL vs. BEHAVIORAL REMEDIES
BY FRANK MAIER-RIGAUD & BENJAMIN LOERTSCHER1
1 Prof. Dr. Frank Maier-Rigaud, Managing Director and Head of Competition Economics Europe, NERA Economic Consulting; Department of Economics and Quantitative Methods
at IESEG School of Management and Université Catholique de Lille; Researcher at the LEM CNRS. [email protected]. Benjamin Loertscher, Consultant, NERA Eco-
nomic Consulting, [email protected]. This paper is based on a presentation given at the 14th annual conference of the GCLC in Brussels on January 31 – February
1, 2019 on Remedies in EU Competition Law: Substance, Process & Policy and the longer and more detailed analysis provided in Loertscher and Maier-Rigaud (2020).
vary substantially. The predominance of behavioral remedies in antitrust cases stands in contrast to structural remedies mostly relied upon in
merger investigations. This is surprising and begs the question of the consistency of the analytical framework used and the factors driving the
Commission’s remedies practice.
II. BACKGROUND
A. Requirements
The Merger Regulation notes the requirement that commitments accepted by the Commission “should be proportionate to the competition
problem and entirely eliminate it.”7 Similarly, Article 7 empowers the Commission “to impose any behavioural or structural remedies which are
proportionate to the infringement committed and necessary to bring the infringement effectively to an end.”
Remedies therefore must meet the following two requirements:
• The remedies must be effective in removing the competition concerns and restore or maintain competition without the need for a (merger)
prohibition decision or an infringement decision under Article 7.
• The remedies must be proportionate to the competition concerns identified.
The legal hurdles for imposing structural remedies under Article 7 continue, however, to be considered to be higher than those for behavioural
remedies. At least this is what a cursory look at Article 7(1)3 would suggest. Moreover, according to recital 12 of Regulation 1/2003, the imposi-
tion of a structural remedy “would only be proportionate where there is a substantial risk of a lasting or repeated infringement that derives from
the very structure of the undertaking.” Reformulating the relevant sections of Article 7(1)3 while preserving their meaning, that is, ensuring the
logical consistency between the original and the reformulated sentence, however, reveals that the subsidiarity of structural remedies is merely
an impression based on the convoluted wording chosen. A logically equivalent, i.e. content preserving reformulation of Article 7(1)3 is as follows:
Behavioral remedies can only be imposed either where there is no more effective structural remedy or where any equally effective struc-
tural remedy would be equally or more burdensome for the undertaking concerned than the behavioral remedy.8
B. Types of Remedies
As indicated by Regulation 1/2003,9 the broadest classification for remedies distinguishes between structural and behavioral remedies.
Structural remedies seek to directly influence the competitive structure of the relevant market(s) in order to maintain or improve the
conditions for competition. Behavioral remedies seek to address the identified competition concerns by requiring certain conduct from the un-
dertakings concerned, which can of course include the requirement to refrain from certain actions.
Access remedies, which will also be introduced in more detail below, are another type of remedy often accepted in the past that has both
structural and behavioral aspects. Despite various efforts to clearly distinguish between types of remedies,10 the distinction is not always clear
cut in practice.
7 See Merger Regulation, paragraph 30.
8 See Maier-Rigaud (2012) and Maier-Rigaud (2016), which include not only a proposed test to choose remedies, but also a treatment of the likely intent of the European Com-
mission as traced back to the initial proposals for Regulation 1/2003. Maier-Rigaud, F. P. (2012). The Idea of the Subsidiarity of Structural Remedies in European Competition
Law (Zur Idee Der Subsidiarität Struktureller Maßnahmen Im Europäischen Wettbewerbsrecht). Wirtschaft und Wettbewerb, 5, 485-500. Retrieved from https://papers.ssrn.com/
sol3/papers.cfm?abstract_id=1906335. Maier-Rigaud, F. P. (2016). Behavioral versus Structural Remedies in EU Competition Law. In P. Lowe, M. Marquis, & G. Monti (eds.),
European Competition Law Annual 2013, Effective and Legitimate Enforcement of Competition Law (pp. chapter 7, 207-224). Hart Publishing. Retrieved from https://papers.
ssrn.com/sol3/papers.cfm?abstract_id=2457594.
9 See Regulation 1/2003, preamble recital 12 and Article 7.
10 See for example the Merger Remedies Notice, the International Competition Network. (2016). Merger Remedies Guide. Retrieved from https://www.internationalcompetition-
network.org/portfolio/merger-remedies-guide, or Motta, M., Polo, M., & Vasconcelos, H. (2007). Merger remedies in the European Union: An overview. The Antitrust Bulletin, Vol.
52, Nos 3 & 4, 603-631.
CPI Antitrust Chronicle April 2020
www.competitionpolicyinternational.com
Competition Policy International, Inc. 2020© Copying, reprinting, or distributing
this article is forbidden by anyone other than the publisher or author.
3
Under Article 7, the Commission can also order the addressees of the decision to cease and desist the conduct infringing Articles 101 or 102.
Such an order can also be viewed as a behavioral remedy.
In the context of merger investigations, behavioral remedies are rarely favored. The Commission states in the Merger Remedies Notice
that “[c]ommitments relating to the future behaviour of the merged entity may be acceptable only exceptionally in very specific circumstances.”21
The main reason for this is that their effectiveness is sometimes questioned because, in contrast to structural remedies, they leave the firms’ in-
centives essentially unchanged.22 In addition, there may be risks regarding the workability of behavioral remedies as an effective implementation
and monitoring may be difficult to ensure, and risks regarding distorting effects on competition.23
Designing behavioral remedies that are effective and do not entail the risks noted above over the typically long periods during which they
are in effect is very challenging. Especially in fast-moving industries, changing circumstances that could not have been foreseen can mean that
behavioral remedies become less effective or even irrelevant, or more difficult to monitor.24 Moreover, the remedies can have the consequence of
distorting the behavior of affected parties in unintended ways such as providing a negative incentive to innovate.25 Behavioral remedies are often
accepted to complement other remedies in a “commitments package” to ensure their effectiveness.
3. Access Remedies
Access remedies seek to eliminate the competition concern identified by requiring that access is granted at appropriate terms to an asset nec-
essary to enable third parties to compete. The asset could be key infrastructure or intellectual property, for example:
- patents;26
- technology;27
- natural gas;28
- capacity in gas import infrastructure;29
- airport slots;30
- mobile telecommunications network;31
- network for supplying traction current;32
21 See Merger Remedies Notice, paragraph 17.

22 See Hellström, P., Maier-Rigaud, F., & Bulst, F. W. (2009). Remedies in European Antitrust Law. The Antitrust Law Journal, 76(1), or Kwoka, J. (2017). Merger Remedies: An
Incentives/Constraints Framework. The Antitrust Bulletin, Vol 62, Issue 2.
24 See e.g. Hoehn, T., & Lewis, A. (2013). Interoperability remedies, FRAND licensing and innovation: a review of recent case law. European Competition Law Review, Vol. 34,
Issue 2, p. 101.
25 See note 24 above.
26 E.g. Case AT.38636 – Rambus.
27 E.g. Case M.6564 – ARM/Giesecke & Devrient/Gemalto/JV.
28 E.g. Case M.3696 – E.ON/MOL.
29 E.g. Case AT.39316 – GDF foreclosure.
30 E.g. Case AT.39596 – British Airways/American Airlines/Iberia or Case M.5335 – Lufthansa/SN Airholding (Brussels Airlines).
31 E.g. Case M.6992 – Hutchison 3G UK/Telefonica Ireland.
32 E.g. Cases AT.39678 & 39731 – Deutsche Bahn I & II.

5
3. Access Remedies
- patents;26
- technology;27
- natural gas;28
- airport slots;30

Issue 2, p. 101.

5
3. Access Remedies
- patents;26
- technology;27
- natural gas;28
- airport slots;30

Issue 2, p. 101.

5
- technical information;33 and
- data under copyright.34
The granting of access is aimed at removing or lowering a barrier to entry or expansion to enable third parties to enter the market or to compete
for a larger part of the market.
Access remedies do not neatly fall into the categories of structural or behavioral remedies and are therefore presented here as a separate
category.35 The Merger Remedies Notice discusses them under the heading “other remedies”36 but also refers to the granting of access to key
infrastructure or inputs as a structural remedy.37 Others suggest that access remedies are behavioral,38 non-structural39 or “quasi-structural”40
remedies. While access remedies a capable of achieving a structural effect on the market concerned, such an effect is not always guaranteed.
A key aspect in this regard is whether the undertakings concerned actually commit to grant access to one or more third parties or whether they
commit to offer to grant access in the event of a request from a third party.41 Access remedies can include the transfer of an asset.42 More often,
however, they are designed to enable access through a supply, lease, license or other type of agreement that leaves the ownership of the assets
unchanged. Moreover, even where such an agreement enables access for an unlimited duration, it will not necessarily be as permanent as a
transfer of ownership since the agreement may be terminated. In this regard, access remedies are less contentious as property rights are less
affected than in a divestiture. In contrast to divestiture commitments, behavioral and access remedies often need to be implemented over many
years43 and can even be unlimited in duration44 and therefore require monitoring measures over a long-term period.
While divestitures, once implemented, are definitive,45 there remains a possibility for the undertakings concerned to request an amend-
ment or waiver of long-term behavioral or access commitments under the review clause long after the original decision.46
33 E.g. Case AT.39230 – Rio Tinto Alcan.

34 E.g. Case M.7337 – IMS Health/Cegedim business.
35 For example, the Merger Remedies Guidance of the Competition and Markets Authority in the UK (last updated in 2018) distinguishes between “IP remedies,” which it
considers may have features of structural or behavioral remedies depending on their formulation, and access remedies, which it considers to be behavioral remedies. See also
Sependa, P. A. (2013). Structural remedies under European Union antitrust rules. Concurrences, No. 2.
36 See Merger Remedies Notice, section 3.
38 See for example the Commission’s contribution to OECD. (2007). Remedies and Sanctions in Abuse of Dominance. Policy Roundtables.
39 See Motta, M., Polo, M., & Vasconcelos, H. (2007). Merger remedies in the European Union: An overview. The Antitrust Bulletin, Vol. 52, Nos 3 & 4, 603-631, or the Merger
Remedies Guide published by the International Competition Network (2016), Annex 2. Retrieved from https://www.internationalcompetitionnetwork.org/portfolio/merger-reme-
dies-guide/.
40 See for example Motta, M., Polo, M., & Vasconcelos, H. (2007). Merger remedies in the European Union: An overview. The Antitrust Bulletin, Vol. 52, Nos 3 & 4, 603-631,
OECD. (2011). Remedies in Merger Cases. Policy Roundtables, or Competition Bureau Canada. (2006), Information Bulletin on Merger Remedies in Canada.
41 E.g. Case M.5440 – Lufthansa/Austrian Airlines.
42 E.g. in Case M.6607 – US Airways/American Airlines airport slots would effectively be transferred to the new entrant if appropriate use had been made of the slot by the new
entrant through the access remedy over a certain period.
43 For example, five years in AT.39592 – Standard & Poor’s.
44 E.g. the interfacing commitment in Case M.3083 – GE/Instrumentarium or the airport slot release commitments in Case M.3770 – Lufthansa/Swiss.
45 In merger cases, commitments accepted by the Commission will normally require the merged entity not to re-acquire material influence over the whole or part of the di-
vestment business for a period of 10 years, unless the Commission finds that the structure of the market has changed to such an extent that the absence of influence over the
divestment business is no longer necessary to render the proposed concentration compatible with the internal market. After this 10-year period, the merged entity may (re-)
acquire the divestment business. Such a transaction may not necessarily be subject to merger control. See Merger Remedies Notice, paragraph 43.
46 In Case M.3280 Air France/KLM for example, the Commission agreed to waive a slot release remedy as well as other related commitments more than 15 years after the
conditional clearance decision.

6
30th April, 2020
Notice under Section 6(2) of the Competition Act, 2002 jointly filed by Canary
Investment Limited and Link Investment Trust II
CORAM:
Mr. Ashok Kumar Gupta

Chairperson
Ms. Sangeeta Verma

Member
Mr. Bhagwant Singh Bishnoi

Member
1. On 16th April, 2020, the Competition Commission of India (Commission) received

a notice (Notice) under Section 6(2) of the Competition Act, 2002 (Act), jointly filed
by Canary Investments Limited (Canary) and Link Investment Trust II (Link).
Canary and Link are affiliates of ChrysCapital, a private equity group with funds
incorporated in Mauritius (ChrysCapital and its affiliates are collectively referred to
as Acquirers). The Notice was given pursuant to the execution of (i) share purchase
agreement (SPA) between the Canary, Link, MACE CIPEF Limited and MACE
CGPE Limited on 10th January, 2020; and (ii) shareholder’s agreement (SHA)
amongst Intas Pharmaceuticals Limited (Intas), Dunearn Investments (Mauritius)
PTE Limited, Crimson Investments Limited, Link Investment Trust, the promoters
of Intas and Canary and Link on 13th January, 2020.
Page 1 of 10
Combination Registration No. C-2020/04/741
and less than 20 percent of the share capital in each of GVK Biosciences Private
Limited (GVK) and Curatio Healthcare Private Limited (Curatio).
10. The interest of ChrysCapital in Eris is limited to its shareholding. Therefore, Eris has
not been considered for identification of overlaps between the portfolio of
ChrysCapital and Intas. However, its interest in GVK, Curatio and Mankind include
board representation, right to seek information as well as the right to veto certain
corporate actions including the change in capital structure, mergers and acquisitions,
commencing new line of business and amendment to charter documents (GVK,
Curatio and Mankind shall be together referred to as Portfolio Entities). A holistic
appreciation of these rights suggest that ChrysCapital enjoys the ability to influence
the strategic focus and operations of GVK, Mankind and Curatio. By way of the
Proposed Combination, the Acquirers now propose to acquire minority shareholding
in Intas along with rights to participate in some of its strategic corporate actions.
11. The nature of rights enjoyed by ChrysCapital in GVK, Mankind and Curatio do not
enable it to unilaterally undertake or stall any corporate action but allow it to veto
certain strategic corporate actions. These give the ability to ChrysCapital to
materially influence the strategic affairs of the said entities. ChrysCapital would gain
similar position in Intas, pursuant to the Proposed Combination. In a combination of
this nature, the ability of the Acquirers to access non-public information as well as
materially influence the strategic affairs of the competitors, whether by veto or
consultation or advisory right or by way of representation on the board such as
director or observer, merit examination of the impact of combination on the
competition between them.
12. For the purpose of defining markets in pharmaceutical cases, the Commission in the
past had looked into the molecular details (ATC 4 level classification) with regard to
prescription drugs. For instance, such is the approach in Sun/ Ranbaxy (C-
2014/05/170). As regards OTC products, the Commission in Novartis/
GlaxoSmithKline (C-2014/07/188) identified product markets based on formulation
Page 4 of 10
Global Tax Free Traders V. William Grant & Sons Limited
Competition Appellate Tribunal. New Delhi

Appeal No. 17/2014
Judgment Date:
19-01-2015
Global Tax Free Traders ..Petitioner
William Grant & Sons Limited ..Respondent

Bench:
{G.S. Singhvi, J. (Chairman) }
Citation:
2015 CompLR 503 (CompAT) ; 4 (2015) CPJ 55 (TA) ;
G.S. Singhvi, J. (Chairman)
1. Having enjoyed the benefits flowing from the agreements entered with Respondent Nos. 1 to 3 appointing it as
exclusive importer and distributor of their products and finding that they will not extend the term of appointment
beyond 31.03.2013, the appellant filed information under Section 19(1)(a) of the Competition Act, 2002 (for short,
'the Act') alleging abuse of dominant position by Respondent Nos. 1 to 3, but could not convince the Competition
Commission of India (for short, 'the Commission) to order an investigation into the alleged violation of Section
4(2)(a)(ii) of the Act and to restrain them from selling their products in the Indian market and also pay
compensation/costs to the tune of 23,72,297.30 pounds, the appellant has filed this appeal under Section 53B of
the Act.
2. Respondent Nos. 1 to 3 belong to William Grant & Sons group of companies. They are engaged in the
production, sale, marketing and distribution of various kinds of spirits including single malt whisky throughout the
world. On 16.11.2005, Respondent Nos. 3 appointed the appellant as authorized importer and distributor in India
except the States of Maharashtra, Goa and Karnataka in respect of the following products:-
? William Grant's Family Reserve Scotch Whisky.
? Glenfiddich Single Malt Scotch Whisky.
? Balvenie Single Malt Scotch Whisky.
3. The tenure of the appellant's appointment was extended from time to time. The last extension was granted
vide letter dated 08.08.2011, the relevant portions of which are extracted below:-
(Page 1 of 21) Printed For: RGNLU Users 11-02-2023 On: 04:11:PM

Global Tax Free Traders V. William Grant & Sons Limited
Whisky has the presence of many other brands of Scotch and Imported Whisky including some brands of BII
Scotch Whisky also.
28. In the INR 800 to INR 1600 price segment, which constitutes around one per cent in volume terms of the
overall Whisky segment, although it is observed that both USL and Diageo are present with their strong brands
like Black Dog 12 Year Old, Black Dog (BII) and Whyte & Mackay in the USL portfolio and brands such as
Johnnie Walker Red Label, Black & While and VAT 69 in the Diageo portfolio, however, it is also seen that in
this price segment, there is also a significant presence of other brands like Pernod Ricard's 100 Pipers, 100
Pipers (BII), Ballantine's Finest and Passport (BII), Beam Global's Teacher's and its variants, WM Grant's Grant's
Family Reserve etc. Within this price segment, it is also observed that if USL's Black Dog 12 Years Old has a
strong presence at the price point of around INR 1600, there are equally strong competitive brands of Teacher's
50 and Teacher's Original at around the same price point. Further, at a price point of INR 1200, if Diageo's
Johnnie Walker Red Label and USL's Black Dog (BII) have strong presence, it is observed that other competitors
like Beam Global with Teacher's, Permod Ricard with Ballantine's Finest, WM Grants with Grant's Family Reserve
are also present at the same price point. Accordingly, at a price point of around INR 900, if Diageo and USL are
present with their brands like Vat 69(BII) and Whyte and Mackay (BII) respectively, other competitors like Beam
Global with Teacher's (BII) and Pernod Ricard with 100 Pipers (BII) are also present at around the same price
point. It is, therefore, seen that the consumers have reasonable choice available at various price points in this
segment, even though the overall volume in this segment of Whisky is miniscule, thus minimizing any concern of
elimination of competitive constraint. It is also observed that the Compound Annual Growth Rate ("CAGR") of most
of the competitors' brands in this price segment is greater than the total CAGR of this entire segment as well as
that of the aggregated Scotch and imported Whisky segment, showing that the competitors' brands in the above
segment have high growth rates and these brands are therefore, considered to be effective competitors to the
brands of the parties to the combination in the above segment. Further, as regards the above price segment, it is
also noted that it is one of the fastest growing segments of the entire branded spirits C-2012/12/97 segment with
a CAGR of around 25 per cent, which can be attributed to the recent trend of premiumisation, which as
discussed above, is currently being witnessed in the branded spirits segment due to the changing demographics of
the alcohol beverage market in India. Considering the current trend of premiumisation, it is anticipated that the
players at various price points in this segment and as well as in other segments may introduce new and
innovative premium brands and products, thereby providing more choice to the consumers."
31. The appellant has relied upon the following portion of order dated 26.2.2013 passed by the Commission in
Combination Case No. C-2012/12/97 and pleaded that single malt scotch whisky should be treated as a distinct
product and relevant market should be confined to the same.
"It is observed that the market for alcoholic beverages comprises of different types of spirits, across various price
segments, and is therefore, considerably differentiated and driven by the consumer's preference for different
products and brands in each product category. The alcoholic beverages/products can be generally differentiated
either on the basis of intrinsic quality or on the grounds of perceived quality. Therefore, in such a market which
is characterized by product differentiation, the propensity of the consumer to switch to a different product
depends upon the closeness of the available substitute products. In this scenario, products which are close
substitutes compete more vigorously with each other in comparison to others that are distant substitutes. It is
observed that if two competing enterprises produce differentiated products that are close substitutes, an increase
in prices by one enterprise could lead to a divergence of the demand to the products of the other. Therefore, the
key variables which an enterprise has to take into account in a differentiated product market while positioning
and pricing its brands, are the characteristics of the brand on the basis of which the enterprise wants to
compete, and then launch its brand in a price band close to the competitors' price, so as to enable it to get its
brand included in the perceived consideration set of the consumers."
In this context, it is important to bear in mind that while deciding the combination case, the Commission had to
foresee any competitive effect of approval granted to the request for combination. Therefore, the ratio of such
approval cannot be directly relied upon for deciding a case of abuse of dominance. It may also be mentioned that
in the combination case, the Commission did not deal with the question whether single malt whisky constitute a
(Page 16 of 21) Printed For: RGNLU Users 11-02-2023 On: 04:11:PM

30th October, 2019
Notice under Section 6(2) of the Competition Act, 2002 filed by Hyundai Motor
Company and Kia Motors Corporation
CORAM:-

Chairperson
Ms. Sangeeta Verma

Member

Member
1. On 2nd September, 2019, the Competition Commission of India (Commission)

received a notice under Section 6(2) of the Competition Act, 2002 (Act), filed by
Hyundai Motor Company (HMC) and Kia Motors Corporation (KMC) in relation to
their proposed acquisition of shares in ANI technologies Pvt. Ltd. (ANI/ OLA) and
Ola Electric Mobility Private Limited (OEMPL). HMC and KMC shall be together
referred to as the Acquirers.
2. The notice has been given pursuant to the share subscription agreements and the
Shareholders’ agreements, all executed amongst the concerned parties between 15th
March, 2019 and 26th March, 2019.
3. The Proposed Combination envisages:
3.1. acquisition of fully and compulsorily convertible cumulative preference

shares (CCPS) of OLA by HMC and KMC, resulting in them holding 3.61%
and 0.90% of the shareholding in OLA, respectively. Along with this
C-2019/09/682 Page 1 of 12
23. In response, the Acquirers filed their submissions on 28th October, 2019 and 30th
October, 2019 contending that “…the software platform created by ANI i.e. the Ola
marketplace, a cab and a passenger are matched based on, not one, but several
objective parameters.”. Further, neither OLA nor HMC is dominant in their respective
markets and there are several radio taxi platforms similar to that of OLA. However,
on a without prejudice basis, the Acquirers offered the voluntary commitment at
Annexure A, in terms of Regulation 19(2) of The Competition Commission of India
(Procedure in regard to the transaction of business relating to combinations)
Regulations, 2011. The voluntary modification offered by the Acquirers is enclosed
herewith at Annexure A.
24. As per the voluntary modification submitted by the Acquirers, the strategic
collaboration between the Acquirers and OLA would be on a non-exclusive basis.
Further, the algorithm/ programme of the marketplace of OLA would not: (a) give
preference to the driver solely based on the brand of the passenger vehicles
manufactured by the Acquirers; or (b) discriminate against any driver based solely on
the brand of the passenger vehicles manufactured by any other automobile
manufacturer. The Acquirers have clarified that apart from the said stipulation on the
algorithm/ programme of the marketplace of OLA, its existing business model with
OFT would not be impacted. Since the compliance of the modification has to be
ensured by OLA, the Commission has directed the Acquirers to procure an affidavit
from OLA to the effect that it would ensure compliance of the modifications.
25. The Commission notes that OLA is a known name for services to drivers and
commuters in the radio taxi space in India. It has been enjoying a considerable market
position in the said business during the last three financial years. If OLA were to prefer
drivers owning HMC or KMC vehicles, as a result of the Proposed Combination, such
preference might place other drivers/ cabs registered in OLA marketplace at a
disadvantage. However, the above modification offered by the Acquirers and OLA
would ensure that the radio taxi marketplace of the latter would act in an objective
manner and its strategic collaboration with the Acquirers would not result in
discrimination of any driver who does not drive a vehicle of HMC or KMC make.
C-2019/09/682 Page 10 of 12
CC3 – Market Investigation References: Competition Commission Guidelines June 2003
(b) The cost of remedies and proportionality
4.10 The Commission must have regard to the reasonableness of any remedy and
will aim to ensure that no remedy is disproportionate in relation to the adverse
effect on competition and any adverse effects on customers. Part of its
consideration will include an assessment of the costs of implementing a
remedy, for example in disbanding or modifying a distribution system; and the
costs of complying with a remedy, for example, providing the OFT with periodic
information on prices or margins. However, the Commission must consider the
wider picture. Adverse effects on competition are likely to result in a cost or
disadvantage to the UK economy in general and customers in particular. Where
significant, these costs might usually be expected to outweigh the costs
incurred by any person on whom remedies are imposed. If the Commission is
choosing between two remedies which it considers would be equally effective,
it will choose the remedy that imposes the least cost or that is least restrictive.
4.11 Other costs such as environmental costs or the social costs of unemployment
will not be assessed by the Commission in its consideration of remedies which
are intended to address the adverse effects on competition or any detrimental
effects on customers.
4.12 The Commission will endeavour to minimise any ongoing compliance costs
to the parties, subject to the effectiveness of the remedy not being reduced,
and will have regard to the OFT’s costs in monitoring compliance, with any
remedies that the Commission may put in place.
(c) Effectiveness of remedies
4.13 Before the several types of remedy are considered in more detail, a few general
observations can be made about the effectiveness of remedies.
4.14 First, a factor bearing on the effectiveness of any remedy is whether it is clear
to the persons to whom it is to be directed and also to other relevant interested
parties, for example, the OFT, which has responsibility for monitoring,
compliance, and other regulators. Other examples include competitors,
suppliers and customers, each of whom may have an interest in ensuring
compliance and may bring to the OFT’s attention any concern that a remedy
is not being complied with. This consideration can be particularly relevant to
remedies concerning ongoing behaviour and the Commission will consider
whether it is possible to devise a remedy that is both clear and not overly
intrusive in its regulation of a firm’s behaviour.
4.15 A second consideration is the prospect of the remedial action being
implemented and complied with. Some remedies are in effect a commitment as
to future behaviour or a standard as to acceptable future behaviour. There may
be less certainty with some remedies compared to others that the remedies will
have the desired effect. A relevant factor will be the ease of monitoring and
enforcing compliance notwithstanding the possibility of setting a compliance
programme. The effectiveness of any remedy may be reduced if elaborate, and
possibly costly, monitoring and compliance programmes are required. One
advantage of one-off remedies that change the structure of the market (so-
called structural remedies) when compared with some remedies that impinge
upon the behaviour or conduct of firms (so-called behavioural remedies) is that
40
4.20 The Commission will also consider whether to recommend that action be taken
by others. This could be action aimed at encouraging increased competition in
the market(s) affected. For example, it might recommend action by government
to change legislation or regulations that limit or control entry. Alternatively
action could aim to prevent or limit potentially anti-competitive behaviour.
4.21 It will, of course, be for the government or other person to whom action is
recommended to decide whether to act. However, the government has given
a commitment to consider any Commission recommendation and to give a
public response within 90 days of publication of the Commission’s report.26
The response may set out the changes it proposes to make in the light of the
report or options on which it proposes to consult. Inevitably, as it falls to others
to make a decision on the recommendation, there will be uncertainty over
whether the recommendation will be accepted and, if so, over the time period
before which it will be implemented. It will be necessary to take this inherent
uncertainty into account when deciding whether to make such a recommendation.
(e) Choice of remedy
4.22 In deciding what remedy or remedies would be appropriate, the Commission

will first look for a remedy that would be effective in dealing with the adverse
effects on competition of the market features rather than seeking to deal with
any detrimental effects on customers. Clearly, what type of effective action
to increase competition can be taken will depend on the nature of the feature
or features concerned. For example, if the feature was a widespread practice
of recommending resale prices in a market with plenty of suppliers, it is likely
that competition would be stimulated, either between those suppliers or
between their (retail) customers, or between both, by a remedy that prohibited
the practice.
4.23 In looking for remedies that would be likely to increase competition in the
relevant market(s), the Commission will give attention to the time period within
which the remedy can be expected to show results. If the remedy is not likely
to have speedy results, the Commission may choose an alternative remedy or
implement additional remedies such as those to remedy the detrimental effects
on customers during the interim period. Otherwise, not only might there be
uncertainty as to whether the effects would ever materialise, but in the
meantime customers would continue to suffer from the consequences of the
adverse effects on competition.
4.24 Remedies that increase the effectiveness of competition may include behavioural
as well as structural remedies. Where, in particular, the conduct of firms has
given rise to adverse and detrimental effects, it can be expected that the
Commission will consider behavioural remedies. These can take many forms
but can have a number of shortcomings. They can involve detailed prescription
of rules of conduct, for example relating to the terms of trade with customers
and suppliers, though there may, in some cases, be a danger of restraining
legitimate competitive behaviour and otherwise being overly intrusive. They can
require detailed monitoring by the OFT or the sector regulator. Notwithstanding
the ability to vary any remedy imposed, behavioural remedies can be difficult to
26 A World Class Competition Regime July 2001 DTI paragraph 4.15.
42
Market Investigation References:
Competition Commission Guidelines
June 2003
CC 3
they are both attributable to the market features and not attainable in any other
way. The Commission will tend to disregard benefits that are purely speculative,
or would only arise at some time in the distant future.
(b) Possible relevant customer benefits
4.32 It is not possible to give detailed guidance on particular benefits that may be
relevant customer benefits in market investigations, as this will tend to reflect
the characteristics of a particular market. However, in the following paragraphs,
examples of possible relevant customer benefits are given. In all instances the
Commission will need to consider whether the criteria set out in paragraph 4.30
above are met.
4.33 Features of a market structure that could adversely affect competition, such as
a high level of concentration, might enable economies of scale to be obtained
that would not be available if there were a larger number of firms in the market.
Scale economies would only be a customer benefit if they meant that prices
would be lower than if there were more firms competing in the market. Whether
scale economies could be a relevant customer benefit would therefore depend
on whether there was sufficient pressure on the firms in the market, perhaps as
a result of potential competition from new entrants, or countervailing buyer
power, for any cost economies to be substantially passed on as lower prices.
4.34 Another potential benefit from high concentration is innovation. The riskiness
and cost of R&D in many industries is such that in many instances it will only
be undertaken by firms of some size and with a degree of market power. Prices
may be higher than they would be with a more competitive market structure
but the pace with which commercially successful new products or methods
are introduced may well be faster. Again some continuing competitive threat
is likely to be necessary if the incentive to innovate is to be maintained.
4.35 Customers are unlikely to enjoy any relevant benefits as a direct result of entry
barriers, although some entry barriers may secure other kinds of benefit, for
example regulations that limit entry to persons of proven competence or with
adequate capital resources. The Commission will have regard to the wider
purpose of such regulations in determining whether they have an adverse effect
on competition. Generally, customers might be expected to benefit from any
reduction of entry barriers.
4.36 Vertical integration and vertical agreements can have beneficial effects through
the better coordination of activities at different stages of the supply chain and
savings in transaction and inventory costs. With vertical integration, this is
achieved by internalising activities which would otherwise be carried out in
separately owned businesses. With vertical agreements it is achieved by a
closer alignment of the incentives of, say the supplier and his distributor,
towards the achievement of complementary objectives. Vertical restrictions
within the supply chain may also help to resolve the free rider problem30 in
markets where suppliers need their distributors to incur certain necessary costs
if advice and other pre-sale services are to be provided on a sustained basis.
4.37 Where vertical integration or vertical agreements enable a firm in a competitive
market to increase its business at the expense of its rivals, the vertical
arrangement is likely to be beneficial. It is where one of the firms concerned
30 Free rider problems exist where other parties benefit from the provision of a good or service without paying for its provision.
44
has market power, or where vertical arrangements are widespread in a market,

that the foreclosure effects and a possible increase in entry barriers, leading to
a dampening of competitive pressures, can outweigh any efficiency benefits.
4.38 Many forms of business conduct can similarly have ambiguous effects. Tie-in
sales or product bundling, for example, can be convenient to customers,
reduce transaction costs and provide quality assurance. When practised by
firms with market power or when the conduct is widespread in a market,
however, these practices can adversely affect the competitive process by
disadvantaging competitors supplying only one of the tied or bundled products.
(c) Relevant customer benefits and remedies
4.39 If the Commission is satisfied that there are relevant customer benefits deriving
from a market feature that also has adverse effects on competition, the
Commission will consider whether to modify the remedy that it might otherwise
have imposed or recommended. When deciding whether to modify a remedy,
the Commission will consider a number of factors including the size and nature
of the expected benefit and how long the benefit is to be sustained.
The Commission will also consider the different impacts of the features on
different customers. It is possible that the benefits are of such significance
compared with the effects of the market feature(s) on competition that the
Commission will decide that no remedy is called for. Given, however, that the
Commission will have found adverse effects on competition this is not likely
to occur frequently.
4.40 Alternatively, the Commission, as a result of identifying relevant customer
benefits, may choose a different remedy, for example a behavioural remedy
rather than a structural remedy. In this situation, the Commission will have to
weigh the disadvantage of a less effective remedy to the competition problem
against the benefits that result from the feature concerned.
4.41 The Commission may also consider whether to impose a monitoring remedy
to give some assurance that the expected benefits would be forthcoming.
Monitoring alone does nothing to deal with the competition issues raised by
a market investigation. But it may enable the competition authorities and
regulators to decide whether any further action is called for.
Undertakings and orders

4.42 As far as its own actions are concerned, the Commission will have the choice
of seeking undertakings from the persons that are to be the subject of the
measures or making of an order. In general, the Commission’s decision as to
which form to use will be determined by issues of practicality such as the
numbers of parties concerned, and their willingness to negotiate and agree
undertakings in the light of the Commission’s report. Another consideration
will be the scope of the Commission’s powers and whether the remedy that
it considers appropriate falls within those powers.
4.43 The Commission’s order making powers are set out in the Act. Schedule 8 sets
out the types of provisions that could be included in an order and Part 1 of
Schedule 9 enables the Commission to modify, by order, licence conditions in
various regulated markets. While the content of any orders made by the
45
(b) The cost of remedies and proportionality
4.10 The Commission must have regard to the reasonableness of any remedy and
will aim to ensure that no remedy is disproportionate in relation to the adverse
effect on competition and any adverse effects on customers. Part of its
consideration will include an assessment of the costs of implementing a
remedy, for example in disbanding or modifying a distribution system; and the
costs of complying with a remedy, for example, providing the OFT with periodic
information on prices or margins. However, the Commission must consider the
wider picture. Adverse effects on competition are likely to result in a cost or
disadvantage to the UK economy in general and customers in particular. Where
significant, these costs might usually be expected to outweigh the costs
incurred by any person on whom remedies are imposed. If the Commission is
choosing between two remedies which it considers would be equally effective,
it will choose the remedy that imposes the least cost or that is least restrictive.
4.11 Other costs such as environmental costs or the social costs of unemployment
will not be assessed by the Commission in its consideration of remedies which
are intended to address the adverse effects on competition or any detrimental
effects on customers.
4.12 The Commission will endeavour to minimise any ongoing compliance costs
to the parties, subject to the effectiveness of the remedy not being reduced,
and will have regard to the OFT’s costs in monitoring compliance, with any
remedies that the Commission may put in place.
(c) Effectiveness of remedies
4.13 Before the several types of remedy are considered in more detail, a few general
observations can be made about the effectiveness of remedies.
4.14 First, a factor bearing on the effectiveness of any remedy is whether it is clear
to the persons to whom it is to be directed and also to other relevant interested
parties, for example, the OFT, which has responsibility for monitoring,
compliance, and other regulators. Other examples include competitors,
suppliers and customers, each of whom may have an interest in ensuring
compliance and may bring to the OFT’s attention any concern that a remedy
is not being complied with. This consideration can be particularly relevant to
remedies concerning ongoing behaviour and the Commission will consider
whether it is possible to devise a remedy that is both clear and not overly
intrusive in its regulation of a firm’s behaviour.
4.15 A second consideration is the prospect of the remedial action being
implemented and complied with. Some remedies are in effect a commitment as
to future behaviour or a standard as to acceptable future behaviour. There may
be less certainty with some remedies compared to others that the remedies will
have the desired effect. A relevant factor will be the ease of monitoring and
enforcing compliance notwithstanding the possibility of setting a compliance
programme. The effectiveness of any remedy may be reduced if elaborate, and
possibly costly, monitoring and compliance programmes are required. One
advantage of one-off remedies that change the structure of the market (so-
called structural remedies) when compared with some remedies that impinge
upon the behaviour or conduct of firms (so-called behavioural remedies) is that
40
they address the competition concern directly and will require comparatively
little, if any, monitoring or enforcement of compliance. However, when deciding
upon the action to take, and having considered all other relevant factors, this
factor alone may not be decisive.
4.16 A third consideration is the timescale within which the effects of any remedial
action will occur. Some remedies will have a more or less immediate effect
while the effects of others will be delayed. There may be particular uncertainty
about the timescale within which results can be expected when the remedy
calls for action by some other person, for example a recommendation to
government to change regulations. The Commission will tend to favour a
remedy that can be expected to show results in a relatively short time period –
so long as it is satisfied that the remedy is both reasonable and practicable and
has no adverse long-run consequences.
4.17 In their consideration, the Commission must have regard to the relevant
statatory functions of the sector regulator concerned.25
(d) Types of remedy
4.18 Except for the statutory limits on the content of orders, there are no formal
restrictions on the remedial action that the Commission can take or
recommend. However, possible remedies can be categorised as follows:
(a) remedies designed to make a significant and direct change to the structure
of a market by a requirement, for example, to divest a business or assets to
a newcomer to the market or to an existing, perhaps smaller, competitor;
(b) remedies designed to change the structure of a market less directly by
reducing entry barriers or switching costs, for example, by requiring the
licensing of know-how or intellectual property rights or by extending the
compatibility of products through industry-wide technical standards;
(c) as a particular category of (b), recommendations for changes to regulations
found to have adverse effects on competition or detrimental effects on
customers, for example, by limiting entry to a market;
(d) remedies directing firms (whether sellers or buyers) to discontinue certain
behaviour (for example, giving advance notice of price changes) or to adopt
certain behaviour (for example, more prominently displaying prices and
other terms and conditions of sale)
(e) remedies designed to restrain the way in which firms would otherwise
behave, for example, the imposition of a price cap;
(f) monitoring remedies, for example, a requirement to provide the OFT with
information on prices or profits.
4.19 Most of the examples above are remedies that would fall to the Commission
itself to impose. Examples of remedies that would require action by other
persons or bodies such as government, regulators and other public bodies
include changes to regulations and measures to increase market transparency.
25 Section 168.
41
4.20 The Commission will also consider whether to recommend that action be taken
by others. This could be action aimed at encouraging increased competition in
the market(s) affected. For example, it might recommend action by government
to change legislation or regulations that limit or control entry. Alternatively
action could aim to prevent or limit potentially anti-competitive behaviour.
4.21 It will, of course, be for the government or other person to whom action is
recommended to decide whether to act. However, the government has given
a commitment to consider any Commission recommendation and to give a
public response within 90 days of publication of the Commission’s report.26
The response may set out the changes it proposes to make in the light of the
report or options on which it proposes to consult. Inevitably, as it falls to others
to make a decision on the recommendation, there will be uncertainty over
whether the recommendation will be accepted and, if so, over the time period
before which it will be implemented. It will be necessary to take this inherent
uncertainty into account when deciding whether to make such a recommendation.
(e) Choice of remedy
4.22 In deciding what remedy or remedies would be appropriate, the Commission

will first look for a remedy that would be effective in dealing with the adverse
effects on competition of the market features rather than seeking to deal with
any detrimental effects on customers. Clearly, what type of effective action
to increase competition can be taken will depend on the nature of the feature
or features concerned. For example, if the feature was a widespread practice
of recommending resale prices in a market with plenty of suppliers, it is likely
that competition would be stimulated, either between those suppliers or
between their (retail) customers, or between both, by a remedy that prohibited
the practice.
4.23 In looking for remedies that would be likely to increase competition in the
relevant market(s), the Commission will give attention to the time period within
which the remedy can be expected to show results. If the remedy is not likely
to have speedy results, the Commission may choose an alternative remedy or
implement additional remedies such as those to remedy the detrimental effects
on customers during the interim period. Otherwise, not only might there be
uncertainty as to whether the effects would ever materialise, but in the
meantime customers would continue to suffer from the consequences of the
adverse effects on competition.
4.24 Remedies that increase the effectiveness of competition may include behavioural
as well as structural remedies. Where, in particular, the conduct of firms has
given rise to adverse and detrimental effects, it can be expected that the
Commission will consider behavioural remedies. These can take many forms
but can have a number of shortcomings. They can involve detailed prescription
of rules of conduct, for example relating to the terms of trade with customers
and suppliers, though there may, in some cases, be a danger of restraining
legitimate competitive behaviour and otherwise being overly intrusive. They can
require detailed monitoring by the OFT or the sector regulator. Notwithstanding
the ability to vary any remedy imposed, behavioural remedies can be difficult to
26 A World Class Competition Regime July 2001 DTI paragraph 4.15.
42
keep in tune with developing market conditions and might introduce their own
distortions of competition. Nevertheless, behavioural remedies of one kind or
another are a likely outcome of some market investigations.
4.25 Remedial action may also be required to address the adverse effects on
competition directly, for example where remedies aimed at correcting the
features which have caused those effects will not bear fruit for some time. Price
restraints are the most obvious example, though there may be others. However,
they are not likely, by their nature, to provide a solution to the underlying
problem, that is, the market features that adversely affect the process of
competition, and on that account are less preferable.
Customer benefits
(a) Relevant customer benefits
4.26 The Commission may in deciding the question of remedies:27

in particular, have regard to the effect of any action on any relevant customer
benefits of the feature or features of the market concerned.
4.27 It would not normally be expected that market features that adversely affect
competition could have beneficial rather than detrimental effects on customers.
The usual consequence of a failure of competition is that prices will be higher
not lower than they would be with more competition. Nevertheless, the
alternative possibility is recognised in the legislation.
4.28 The Commission will disregard any benefits that might arise from commitments
that the parties may wish to offer but that do not meet the criteria of a relevant
customer benefit. That is, the benefits must clearly result from one or
more features and be unlikely to have come about without the feature
or features concerned.
4.29 Relevant customer benefits are limited to benefits to relevant customers in the
form of:28
(a) lower prices, higher quality or greater choice of goods or services in any
market in the United Kingdom (whether or not the market to which the
feature or features concerned relate); or
(b) greater innovation in relation to such goods or services.
4.30 The Act provides that a benefit is only a relevant customer benefit if the
Commission believes that:
(a) the benefit has accrued as a result (whether wholly or partly) of the feature
or features concerned or may be expected to accrue within a reasonable
period of time as a result (whether wholly or partly) of that feature or those
features; and
(b) the benefit was, or is, unlikely to accrue without the feature or
features concerned.29
4.31 In considering potential relevant customer benefits, the Commission will need
to ascertain that market features with which it has been concerned do indeed
lead to lower prices, higher quality, wider choice or greater innovation, and that
27 Section 134(7).
28 Section 134(8).
29 Section 134(8).
43
they address the competition concern directly and will require comparatively
little, if any, monitoring or enforcement of compliance. However, when deciding
upon the action to take, and having considered all other relevant factors, this
factor alone may not be decisive.
4.16 A third consideration is the timescale within which the effects of any remedial
action will occur. Some remedies will have a more or less immediate effect
while the effects of others will be delayed. There may be particular uncertainty
about the timescale within which results can be expected when the remedy
calls for action by some other person, for example a recommendation to
government to change regulations. The Commission will tend to favour a
remedy that can be expected to show results in a relatively short time period –
so long as it is satisfied that the remedy is both reasonable and practicable and
has no adverse long-run consequences.
4.17 In their consideration, the Commission must have regard to the relevant
statatory functions of the sector regulator concerned.25
(d) Types of remedy
4.18 Except for the statutory limits on the content of orders, there are no formal
restrictions on the remedial action that the Commission can take or
recommend. However, possible remedies can be categorised as follows:
(a) remedies designed to make a significant and direct change to the structure
of a market by a requirement, for example, to divest a business or assets to
a newcomer to the market or to an existing, perhaps smaller, competitor;
(b) remedies designed to change the structure of a market less directly by
reducing entry barriers or switching costs, for example, by requiring the
licensing of know-how or intellectual property rights or by extending the
compatibility of products through industry-wide technical standards;
(c) as a particular category of (b), recommendations for changes to regulations
found to have adverse effects on competition or detrimental effects on
customers, for example, by limiting entry to a market;
(d) remedies directing firms (whether sellers or buyers) to discontinue certain
behaviour (for example, giving advance notice of price changes) or to adopt
certain behaviour (for example, more prominently displaying prices and
other terms and conditions of sale)
(e) remedies designed to restrain the way in which firms would otherwise
behave, for example, the imposition of a price cap;
(f) monitoring remedies, for example, a requirement to provide the OFT with
information on prices or profits.
4.19 Most of the examples above are remedies that would fall to the Commission
itself to impose. Examples of remedies that would require action by other
persons or bodies such as government, regulators and other public bodies
include changes to regulations and measures to increase market transparency.
25 Section 168.
41
Fair Competition
For Greater Good

10.11.2014
Notice under section 6(2) of the Competition Act, 2002 given by:
 New Moon B.V.
1. On 12.08.2014, the Competition Commission of India (hereinafter referred to as

the “Commission”) received a notice under sub-section (2) of Section 6 of the
Competition Act, 2002 given by New Moon B.V. (hereinafter referred to as the
the “Acquirer”). The notice was filed pursuant to the Business Transfer
Agreement and Plan of Merger (hereinafter referred to as the “BTA”), entered
into between Abbott Laboratories (hereinafter referred to as “Abbott”), Mylan
Inc. (hereinafter referred to as „Mylan‟), Acquirer and Moon of PA Inc.
(hereinafter referred to as “Merger Sub”), on 13.07.2014 (hereinafter Abbott,
Mylan, Acquirer and Merger Sub are collectively referred as the „Parties‟).
2. In terms of Regulation 14 of the Competition Commission of India (Procedure in

regard to transaction of business relating to combinations) Regulations, 2011
(„Combination Regulations‟), vide letter dated 29.08.2014, the Acquirer was
required to remove certain defects and provide information/document(s). The
Acquirer submitted its reply vide letter dated 10.09.2014, which was found to be
incomplete; and therefore, another letter was sent to the Acquirer on 15.09.2014
in terms of Regulation 14 of the Combination Regulations. The reply to the said
letter was received from the Acquirer on 07.10.2014, after seeking an extension.
However, as the said reply was still incomplete, the Acquirer was again asked to
submit required information vide our letter dated 13.10.2014. The Acquirer
submitted certain clarifications on 14.10.2014; however, since these clarifications
were not sufficient, the Acquirer was further asked to provide complete
information vide our letter dated 16.10.2014. The response of the Acquirer in this
regard was received on 22.10.2014. The Acquirer was further sent a letter on
27.10.2014 under Regulation 14 of the Combination Regulations for which the
Acquirer filed its final response on 03.11.2014.
Page 1 of 5
Fair Competition
For Greater Good
Mylan’s common stock will be cancelled and the Acquirer will issue its shares to
the former shareholders of Mylan and consequently, the Acquirer will become the
parent company of Mylan.
6. It is also noted that an intimation of change to the notice under Regulation 16 of

the Combination Regulations was filed by the Acquirer vide letter dated
03.11.2014, pursuant to execution of an Amendment Agreement signed between
the Parties on 21.10.2014. As per the information furnished by the Acquirer, the
Amendment Agreement (i) adjusts the pricing terms pursuant to which the
affiliates of Abbott will manufacture and supply products for affiliates of the
Acquirer, and (ii) increases the number of shares to be issued to Abbott, as a
result of which, the former shareholders of Mylan will own approximately 78 per
cent and Abbott and its affiliates will own approximately 22 per cent of
shareholding in the Acquirer. The Commission considered the above said
changes in the proposed combination and noted that the said changes are not
likely to affect the factors for determination of the appreciable adverse effect on
competition in India. The Commission, accordingly, took on record the said
changes in the proposed combination as intimated by the Parties.
7. As regards the transfer of EPP segment of Abbott in Europe, Japan, Australia,

New Zealand and Canada to the Acquirer, it has been stated in the notice that the
said transfer will have no impact in India as Mylan and Abbott will continue to
operate the said business in India.
8. It has also been submitted by the Acquirer that the proposed acquisition of 22 per
cent shareholding by Abbott in the Acquirer, as per the Amendment agreement
dated 21.10.14, would be exempt in view of Regulation 4 read with Item 1 of
Schedule I to the Combination Regulations, as the said acquisition of shares by
Abbott in the Acquirer would be made solely as an investment, which would not
result in acquisition of control by Abbott over the Acquirer.
9. In this regard, it is observed that an acquisition of shares or voting rights, even if

it is of less than 25 per cent, may raise competition concerns if the acquirer and
the target are either engaged in business of substitutable products/services or are
Page 3 of 5
Fair Competition
For Greater Good
engaged in activities at different stages or levels of the production chain. Such

acquisitions need not necessarily be termed as an acquisition made solely as an
investment or in the ordinary course of business, and thus would require
competition assessment, on a case to case basis, under the relevant provisions of
the Act.
10. In view of the above, the Acquirer was asked to provide information related to
business activities of Mylan and Abbott in India. As per the data provided by the
Acquirer, it is observed that there is horizontal overlap between the
pharmaceutical products of Mylan and Abbott in India with respect to certain
molecules namely, colecalciferol, progesterone, human menopausal
gonadotrophin, chorionic gonadotrophin, emtricitabine tenofovir disoproxil and
tenofovir disoproxil. However, it is observed that in all of the said overlapping
molecules, the combined market share of Mylan and Abbott is between [6-10] per
cent and the incremental market share is between [0-5] per cent. Accordingly, it is
observed that the horizontal overlap between the pharmaceutical products of
Mylan and Abbott in India is insignificant to raise any competition concern in
India. Further, as per the information provided in the notice, there is no vertical
relationship between the Abbott and Mylan in India. In addition to above, as
stated in the notice, the proposed acquisition of 22 per cent shareholding by
Abbott in the Acquirer would also not provide Abbott any affirmative voting
rights or veto rights in the Acquirer.
11. Considering the facts on record and the details provided in the notice given under
sub-section (2) of Section 6 of the Act and assessment of the proposed
combination on the basis of factors stated in sub-section (4) of Section 20 of the
Act, the Commission is of the opinion that the proposed combination is not likely
to have an appreciable adverse effect on competition in India and therefore, the
Commission hereby approves the same under sub-section (1) of Section 31 of the
Act.
12. This approval is without prejudice to any other legal/statutory obligations as

applicable.
Page 4 of 5
Gi
Fair Competition
For Greater Good

Dated: 4" May, 2016
Notice under Section 6 (2) of the Competition Act, 2002 given by PVR Limited
CORAM:
Devender Kumar Sikri

Chairperson
S. L. Bunker
Member
Sudhir Mital
Member
Augustine Peter
Member
M.S. Sahoo
Member
U. C. Nahta
Member
G. P. Mittal]
Member
Legal Representative: ELP Advocates & Solicitors and Shardul Amarchand Mangaldas
Order under Section 31(7) of the Competition Act, 2002 (“Order”)
_ Introduction
1. On8" July, 2015, the Competition Commission of India (“Commission”) received a notice
(“Notice”) under sub-section (2) of Section 6 of the Competition Act, 2002 (“Act”) given
by PVR Limited (“PVR’/“Acquirer”) pursuant to the execution of an agreement dated 9"
Page f of 41
Falr Competition
COMMISSION OF INDIA “ For Greater Good
COMPETITION
d. Freeze on expansion:
“PVR shall not expand, i.e., open through organic expansion or takeover
through inorganic acquisition, any new screens (either single screen or
multiplex), for a period of 5 years from the date of completion of the Proposed
Combination in the relevant geographic market of South Delhi. This
commitment shall not apply to DT Chanakyapuri (1000 seats and 3 screens)
which is expected to open in 2016.”
e. Commitment with distributors:
“PVR shall not seek exclusivity of content from any distributor for a period of
five years from the date of final order of the Hon’ble Commission”
98. The Commission (by majority) noted that the idea behind ex ante review of combinations —
is to restrain those combinations, which, if allowed to go forward, would be likely to
adversely affect competition in the relevant market. Combinations by their very nature can
eliminate any competition that exists between the parties and reduce the number of firms
competing in the relevant market. Where this reduction is likely to cause AAEC, the market
will be less oriented to consumer and efficiency goals such as lower prices, better quality,
more consumer choice and innovation (even in the absence of any violations of competition
law). In short, the aim of ex ante review is to avert structural changes that would damage
the incentives to compete. Behavioural remedies such as price caps and quality
commitments would not adequately replicate the outcomes of a competitive market. The
Commission noted that price caps and quality commitments offered in this case would be
akin to an undertaking by the Acquirer not to abuse the dominant position being created in
the relevant market of exhibition of films in multiplex theatres and high-end single screen
theatres in South Delhi as a result of the Proposed Combination, with the requirement that
the Commission monitor the same on an ongoing basis. The purpose of remedies is to
preserve to the extent possible the pre-combination level of competition by recreating as
far as possible the competitive status quo in the affected markets. In this context it was
‘noted that the behavioural commitments referred above would not effectively alleviate the
competition concerns in the relevant market for exhibition of films in multiplex theatres
and high-end single screen theatres in South Delhi, apart from the fact that behavioural
remedies would be difficult to formulate, implement & monitor and run the risk of creating
market distortions. This is in line with international best practices wherein structural
remedies as they directly address the cause of competitive harm arising from the
elimination of a vigorous competitor and have durable impact by way of creating an
effective competitor to the combined entity, are preferred to behavioural remedies for
Page 26 of 41
Falr Competition
COMMISSION OF INDIA “ For Greater Good
COMPETITION
d. Freeze on expansion:
“PVR shall not expand, i.e., open through organic expansion or takeover
through inorganic acquisition, any new screens (either single screen or
multiplex), for a period of 5 years from the date of completion of the Proposed
Combination in the relevant geographic market of South Delhi. This
commitment shall not apply to DT Chanakyapuri (1000 seats and 3 screens)
which is expected to open in 2016.”
e. Commitment with distributors:
“PVR shall not seek exclusivity of content from any distributor for a period of
five years from the date of final order of the Hon’ble Commission”
98. The Commission (by majority) noted that the idea behind ex ante review of combinations —
is to restrain those combinations, which, if allowed to go forward, would be likely to
adversely affect competition in the relevant market. Combinations by their very nature can
eliminate any competition that exists between the parties and reduce the number of firms
competing in the relevant market. Where this reduction is likely to cause AAEC, the market
will be less oriented to consumer and efficiency goals such as lower prices, better quality,
more consumer choice and innovation (even in the absence of any violations of competition
law). In short, the aim of ex ante review is to avert structural changes that would damage
the incentives to compete. Behavioural remedies such as price caps and quality
commitments would not adequately replicate the outcomes of a competitive market. The
Commission noted that price caps and quality commitments offered in this case would be
akin to an undertaking by the Acquirer not to abuse the dominant position being created in
the relevant market of exhibition of films in multiplex theatres and high-end single screen
theatres in South Delhi as a result of the Proposed Combination, with the requirement that
the Commission monitor the same on an ongoing basis. The purpose of remedies is to
preserve to the extent possible the pre-combination level of competition by recreating as
far as possible the competitive status quo in the affected markets. In this context it was
‘noted that the behavioural commitments referred above would not effectively alleviate the
competition concerns in the relevant market for exhibition of films in multiplex theatres
and high-end single screen theatres in South Delhi, apart from the fact that behavioural
remedies would be difficult to formulate, implement & monitor and run the risk of creating
market distortions. This is in line with international best practices wherein structural
remedies as they directly address the cause of competitive harm arising from the
elimination of a vigorous competitor and have durable impact by way of creating an
effective competitor to the combined entity, are preferred to behavioural remedies for
Page 26 of 41
1st October, 2019
Notice under Section 6 (2) of the Competition Act, 2002 jointly filed by TRIL Urban
Transport Private Limited, Valkyrie Investment Pte Limited and Solis Capital
(Singapore) Pte. Limited.
CORAM:

Chairperson
Ms. Sangeeta Verma

Member

Member
1. The Competition Commission of India (“Commission”) received a notice under Section

6(2) of the Competition Act, 2002 (“Act”), jointly filed by TRIL Urban Transport Private
Limited (“TUTPL”), Valkyrie Investment Pte Limited (“Valkyrie”) and Solis Capital
(Singapore) Pte. Limited (“Solis”), on 31st July, 2019. (Hereinafter, TUTPL, Valkyrie and
Solis are collectively referred to as “Acquirers”). The proposed combination pertains to
acquisition of shares of GMR Airports Limited (“GAL” or “Target”) jointly by the
Acquirers.
Page 1 of 16
Combination Registration No. C-2019/07/676
12. From the agreements executed between the Parties, the Commission also observed that
Tata Sons group have, inter alia, acquired certain reserved matters and board seat in the
entities of GAL which are currently operating airport or would be running the airports.
13. Accordingly, the Commission assessed vertical overlaps between Tata Sons group and
GMR group with respect to the services that are currently offered by Tata Sons group at,
inter alia, the Operational Airports or may be offered in other target airports. The
Commission observed that this vertical relationships between Tata Sons group and the
GMR group, may lead to a scenario of conflict of interest, as with vertically integration,
there may be an incentive on the part of the Parties to foreclose downstream players, i.e.,
the competing airlines, among other service providers.
14. In this context, the Commission, based on the submissions, also noted that none of the
portfolio investee companies controlled by Solis and / or SSG Group and by Valkyrie and
/ or GIC group are engaged vertically to the business as the entities of GAL. Therefore,
there are no existing vertical overlaps between Valkyrie / GIC group, Solis / SSG group
and the GMR group.
Delineation of the Relevant Market
15. The Commission notes that „Relevant market‟ consists of „relevant product market‟
and/or „relevant geographic market‟. The relevant product market as defined under
Section 2 (t) of the Act means “a market comprising of all those products or services
which are regarded as interchangeable or substitutable by the consumer, by reason of
characteristics of the products or services, their prices and intended use.” The relevant
geographic market, on the other hand, defines the contours with regard to geography
within which the conditions of competition for supply of goods or provision of services
are distinctly homogenous and can be distinguished from the conditions prevailing in the
neighbouring areas.
Page 6 of 16
SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.
Page 1 Friday, February 10, 2023
Printed For: Suryaptatap Singh Jodha, Rajiv Gandhi National University of Law
SCC Online Web Edition: http://www.scconline.com
© 2023 EBC Publishing Pvt. Ltd. No claim to original U.S. Government Works.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
1957 SCC OnLine US SC 78 : 353 US 586 (1957) : 77 S.Ct. 872 : 1 L.Ed.2d 1057
Supreme Court of United States

(BEFORE EARL WARREN, C.J. AND HUGO L. BLACK, FELIX FRANKFURTER, WILLIAM J. BRENNAN,
JR., WILLIAM O. DOUGLAS, TOM C. CLARK, CHARLES E. WHITTAKER, HAROLD H. BURTON AND
JOHN MARSHALL HARLAN 2D, JJ.)
UNITED STATES of America, Appellant,

Versus
E. I. DU PONT DE NEMOURS AND COMPANY et al.
No. 3
Argued Nov. 14, 15, 1956
Decided on June 3, 1957
Mr. Justice BRENNAN delivered the opinion of the Court.
1. This is a direct appeal under § 2 of the Expediting Act1 from a judgment of the
District Court for the Northern District of Illinois,2 dismissing the Government's action
brought in 1949 under § 15 of the Clayton Act.3 The complaint alleged a violation of §
7 of the Act4 resulting from the purchase by E. I. du Pont de Nemours and Company in
1917—1919 of a 23% stock interest in General Motors Corporation. This appeal is from
the dismissal of the action as to du Pont, General Motors and the corporate holders of
large amounts of du Pont stock, Christiana Securities Corporation and Delaware Realty
& Investment Company.5
2. The primary issue is whether du Pont's commanding position as General Motors'
supplier of automotive finishes and fabrics was achieved on competitive merit alone, or
because its acquisition of the General Motors' stock, and the consequent close
intercompany relationship, led to the insulation of most of the General Motors' market
from free competition, with the resultant likelihood, at the time of suit, of the creation
of a monopoly of a line of commerce.
3. The first paragraph of § 7, pertinent here, provides:
4. 'That no corporation engaged in commerce shall acquire, directly or indirectly,
the whole or any part of the stock or other share capital of another corporation
engaged also in commerce, where the effect of such acquisition may be to
substantially lessen competition between the corporation whose stock is so acquired
and the corporation making the acquisition, or to restrain such commerce in any
section or community, or tend to create a monopoly of any line of commerce.'6
5. Section 7 is designed to arrest in its incipiency not only the substantial lessening
of competition from the acquisition by one corporation of the whole or any part of the
stock of a competing corporation, but also to arrest in their incipiency restraints or
monopolies in a relevant market which, as a reasonable probability, appear at the time
of suit likely to result from the acquisition by one corporation of all or any part of the
stock of any other corporation. The section is violated whether or not actual restraints
or monopolies, or the substantial lessening of competition, have occurred or are
intended. Acquisitions solely for investment are excepted, but only if, and so long as,
the stock is not used by voting or otherwise to bring about, or in attempting to bring
about, the substantial lessening of competition.
6. We are met at the threshold with the argument that § 7, before its amendment
in 1950, applied only to an acquisition of the stock of a competing corporation, and not
to an acquisition by a supplier corporation of the stock of a customer corporation—in
other words, that the statute applied only to horizontal and not to vertical acquisitions.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
v. Board of Governors, 3 Cir., 206 F.2d 163, 169:

13. 'A monopoly involves the power to * * * exclude competition when the
monopolist desires to do so. Obviously, under Section 7 it was not necessary * * * to
find that * * * (the defendant) has actually achieved monopoly power but merely that
the stock acquisitions under attack have brought it measurably closer to that end. For
it is the purpose of the Clayton Act to nip monopoly in the bud. Since by definition
monopoly involves the power to eliminate competition a lessening of competition is
clearly relevant in the determination of the existence of a tendency to monopolize.
Accordingly in order to determine the existence of a tendency to monopoly in * * *
any * * * line of business the area or areas of existing effective competition in which
monopoly power might be exercised must first be determined * * *.'
14. Appellees argue that there exists no basis for a finding of a probable restraint or
monopoly within the meaning of § 7 because the total General Motors market for
finishes and fabrics constituted only a negligible percentage of the total market for
these materials for all uses, including automotive uses. It is stated in the General
Motors brief that in 1947 du Pont's finish sales to General Motors constituted 3.5% of
all sales of finishes to industrial users, and that its fabrics sales to General Motors
comprised 1.6% of the total market for the type of fabric used by the automobile
industry.
15. Determination of the relevant market is a necessary predicate to a finding of a
violation of the Clayton Act because the threatened monopoly must be one which will
substantially lessen competition 'within the area of effective competition.'11
Substantiality can be determined only in terms of the market affected. The record
shows that automotive finishes and fabrics have sufficient peculiar characteristics and
uses to constitute them products sufficiently distinct from all other finishes and
fabrics12 to make them a 'line of commerce' within the meaning of the Clayton Act. Cf.
Van Camp & Sons Co. v. American Can Co., 278 U.S. 245, 49 S.Ct. 112, 13 L.Ed.
311.13 Thus, the bounds of the relevant market for the purposes of this case are not
coextensive with the total market for finishes and fabrics, but are coextensive with the
automobile industry, the relevant market for automotive finishes and fabrics.14
16. The market affected must be substantial. Standard Fashion Co. v. Magrane-
Houston Co., 258 U.S. 346, 357, 42 S.Ct. 360, 362, 66 L.Ed. 653. Moreover, in order
to establish a violation of § 7 the Government must prove a likelihood that competition
may be 'foreclosed in a substantial share of * * * (that market).'15 Both requirements
are satisfied in this case. The substantiality of a relevant market comprising the
automobile industry is undisputed. The substantiality of General Motors' share of that
market is fully established in the evidence.
17. General Motors is the colossus of the giant automobile industry. It accounts
annually for upwards of two fifths of the total sales of automotive vehicles in the
nation.16 In 1955 General Motors ranked first in sales and second in assets among all
United States industrial corporations17 and became the first corporation to earn over a
billion dollars in annual net income.18 In 1947 General Motors' total purchases of all
products from du Pont were $26,628,274, of which $18,938,229 (71%) represented
purchases from du Pont's Finishes Division. Of the latter amount purchases of 'Duco'19
and the thinner used to apply 'Duco' totaled $12,224,798 (65%), and 'Dulix'20
purchases totaled $3,179,225. Purchases by General Motors of du Pont fabrics in 1948
amounted to $3,700,000, making it the largest account of du Pont's Fabrics Division.
Expressed in percentages, du Pont supplied 67% of General Motors' requirements for
finishes in 1946 and 68% in 1947.21 In fabrics du Pont supplied 52.3% of
requirements in 1946, and 38.5% in 1947.22 Because General Motors accounts for
almost one-half of the automobile industry's annual sales, its requirements for
automotive finishes and fabrics must represent approximately one-half of the relevant
-----------------------------------------------------------------------------------------------------------------------------------------------------------
importance. The District Judge had the opportunity to observe the demeanor of the
witnesses and to judge their credibility at first hand. Thus, this case is a proper one for
the application of the principle embodied in Rule 52(a) of the Federal Rules of Civil
Procedure: 'Findings of fact shall not be set aside unless clearly erroneous, and due
regard shall be given to the opportunity of the trial court to judge of the credibility of
the witnesses.' United States v. Oregon State Medical Society, 343 U.S. 326, 330—
332, 339, 72 S.Ct. 690, 694—695, 698, 96 L.Ed. 978; United States v. Yellow Cab Co.,
338 U.S. 338, 341—342, 70 S.Ct. 177, 179, 94 L.Ed. 150.
121. This is not a situation in which oral testimony is contradicted by
contemporaneous documents. See United States v. United States Gypsum Co., 333
U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746. In this case, the findings of the District Court
are supported both by contemporaneous documents and by oral testimony. For
example, General Motors' search for a better automotive finish, the superiority of the
product developed by du Pont, and General Motors' continuous efforts to secure an
equally good lacquer from other sources are all proved by letters and reports written in
the early 1920's as well as by the oral testimony of many witnesses. Similarly,
contemporaneous exhibits prove that General Motors purchased fabrics from du Pont
because of the superiority of du Pont products, and that on other occasions it turned to
competing suppliers even though du Pont's product was just as good. Appellate review
of detailed findings based on substantial oral testimony and corroborative documents
must be limited to setting aside those that are clearly erroneous. The careful and
detailed findings of fact of the District Court in this case cannot be so labeled.29
B. Relevant Market.
122. Finally, even assuming the correctness of the Court's conclusion that du Pont's
competitors have been or will be foreclosed from General Motors' paint and fabric
trade, it is still necessary to resolve one more issue in favor of the Government in
order to reverse the District Court. It is necessary to hold that the Government proved
that this foreclosure involves a substantial share of the relevant market and that it
significantly limits the competitive opportunities of others trading in that market.30
123. The relevant market is the 'area of effective competition' within which the
defendants operate. Standard Oil Co. of California v. United States, 337 U.S. 293,
299—300, note 5, 69 S.Ct. 1051, 1055, 93 L.Ed. 1371. '(T)he problem of defining a
market turns on discovering patterns of trade which are followed in practice.' United
States v. United Shoe Machinery Corp., D.C., 110 F.Supp. 295, 303, affirmed per
curiam, 347 U.S. 521, 74 S.Ct. 699, 98 L.Ed. 910. 'Determination of the competitive
market for commodities depends on how different from one another are the offered
commodities in character or use, how far buyers will go to substitute one commodity
for another.' United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 393, 76
S.Ct. 994, 1006, 100 L.Ed. 1264. This determination is primarily one of fact.
124. The Court holds that the relevant market in this case is the automotive market
for finishes and fabrics, and not the total industrial market for these products. The
Court reaches that conclusion because in its view 'automotive finishes and fabrics have
sufficient peculiar characteristics and uses to constitute them products sufficiently
distinct from all other finishes and fabrics * * *.' 353 U.S. 593, 594, 77 S.Ct. 877. We
are not told what these 'peculiar characteristics' are. Nothing is said about finishes
other than that Duco represented an important contribution to the process of
manufacturing automobiles. Nothing is said about fabrics other than that sales to the
automobile industry are made by means of bids rather than fixed price schedules.
Dulux is included in the 'automobile' market even though it is used on refrigerators
and other appliances, but not on automobiles. So are other finishes and fabrics used
on diesel locomotives, engines, parts, appliances and other products which General
Motors manufactures. Arbitrary conclusions are not an adequate substitute for analysis
-----------------------------------------------------------------------------------------------------------------------------------------------------------
An examination of the circumstances in which this letter was written disposes of any notion that it expressed
a policy that General Motors should prefer du Pont's products when they were equal in quality, service and
price. The circumstances were these: Delco Light was buying paint from a competitor of du Pont. When the
competitor failed to solve a paint problem which confronted Delco, it called on du Pont for help. However,
although du Pont solved the problem and abtained one order for paint, Delco asked du Pont to withhold
delivery so that the competitor could be given another opportunity to retain the business. Understandingly,
Elms of the du Pont Paint Department was somewhat piqued by this, and he wrote a personal letter to his
friend Pratt asking for his assistance. Pratt's letter to the general manager of Delco was the result.
Despite the fact that the du Pont product was offered at a lower price and the fact that the technical staff
at Delco thought the du Pont product superior, Delco nevertheless continued to buy from the competitor. Du
pont never did receive the business to which the correspondence related. Judged by either its content or its
result, the Pratt letter is a poor example of an alleged du Pont policy of 'purposely employ(ing) its stock to
pry open the General Motors market * * *.' 353 U.S. 606, 77 S.Ct. 884.
28 The Court, without referring to any supporting evidence, ventures the conjecture that 'General Motors
probably turned to outside sources of supply at least in part because its requirements outstripped du Pont's
production * * *.' 353 U.S. 605, 77 S.Ct. 883. As I read the record, du Pont was actively soliciting more
business from General Motors and others throughout the period covered in this suit. I find no hint that du Pont
was surfeited with business and unable to fill General Motors' orders.
29 The Court also overturns the District Court's express finding that du Pont purchased General Motors' stock
solely for investment. The Court does this on the basis of an alleged du Pont purpose to secure a noncompetitive
preference which the Court finds expressed in the Raskob letter and in certain statements in du Pont's 1917 and
1918 reports to its stockholders. These documents, however, are not inconsistent with the District Court's
finding of an investment purpose. The District Court said:
'Raskob's report, the testimony of Pierre S. and Irenee du Pont and all the circumstances leading up to du
Pont's acquisition of this
substantial interest in General Motors, as shown by the record, establish that the acquisition was essentially
an investment. Its motivation was the profitable employment of a large part of the surplus which du Pont had
available and uncommitted to expansion of its own business.
'Raskob's reports and other documents written at or near the time of the investment show that du Pont's
representatives were well aware that General Motors was a large consumer of products of the kind offered by
du Pont. Raskob, for one, thought that du Pont would ultimately get all that business, but there is no
evidence that Raskob expected to secure General Motors trade by imposing any limitation upon its freedom to
buy from suppliers of its choice. Other documents also establish du Pont's continued interest in selling to
General Motors—even to the extent of the latter's entire requirements—but they similarly make no suggestion
that the desired result was to be achieved by limiting General Motors purchasing freedom. On the contrary, a
number of them explicitly recognized that General Motors trade could only be secured on a competitive basis.'
126 F.Supp. at pages 242, 243.
Whether any stock purchase is an investment turns largely on the intent of the purchaser. Pennsylvania R.
Co. v. Interstate Commerce Commission, 3 Cir., 66 F.2d 37, affirmed by an equally divided court, 291 U.S.
651, 54 S.Ct. 559, 78 L.Ed. 1045. In this case, since the District Court's finding with reference to that intent
is unequivocal and not clearly erroneous, the stock acquisition falls within the proviso, stated in the third
paragraph of § 7, expressly excepting acquisitions made 'solely for investment.'
30 The District Court did not reach this question since it found that there was no reasonable probability of any
foreclosure of du Pont's competitors by reason of du Pont's 23% stock interest in General Motors. Consequently,
there are no findings of fact dealing with the relevant market. Also, the record appears deficient on such crucial
questions as the characteristics of the products, the uses to which they are put, the extent to which they are
interchangeable with competitors' products, and so on. For these reasons, I believe the Court in any event
should remand the case to the District Court to give the District Judge, who is more familiar with the record than
we can be, an opportunity to review the record, and entertain argument with respect to the substantiality of
the share of the relevant market affected by the foreclosure which the Court finds to exist. By declining to
remand, the Court necessitates a scrutiny here of this huge record for a determination of an essentially factual
question not passed on by the District Court, and not thoroughly briefed or argued by the parties.
31
The Court states that 'General Motors took 93% of du Pont's automobile Duco production in 1941 and 83% in
1947.' 353 U.S. 605, 77 S.Ct. 883. These figures are of little significance. Not only do they omit the
crucial sales—those made outside the automobile industry—but they give a misleading impression with
respect to du Pont's sales to the automobile industry. As previously stated, Ford chose to make its own
requirements after about 1935 and Chrysler desired to concentrate its purchases on one supplier. Under
these figures, after eliminating Ford and Chrysler, and deducting du Pont's sales to General Motors, du Pont

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COMPETITION COMMISSION OF INDIA

Case No. 103 of 2016

1. Aditya Automobile Spares Private Limited

2. Rajkrishna Aditya Auto Store Private Limited

3. Aditya Auto Store

4. Aditya Global Trading

Kotak Mahindra Bank Ltd.

Case No.103 of 2016 Page 1 of 9

Case No.103 of 2016 Page 7 of 9

Notice under sub-section (2) of Section 6 of Competition Act, 2002

Mr. Devender Kumar Sikri

Mr. Sudhir Mital

Mr. Augustine Peter

Legal Representatives of Bayer AG: Luthra & Luthra Law Offices

Order under Section 31(7) of the Competition Act, 2002

1. On 07.08.2017, the Competition Commission of India (hereinafter referred to as the

Downstream market of commercialization of Bt. cotton seed in India

1Deputy Director, Economics Division, Competition Commission of India;

2.2 Role of Behavioural Remedies in the Merger Control

BY FRANK MAIER-RIGAUD & BENJAMIN LOERTSCHER1

Remedies therefore must meet the following two requirements:

• The remedies must be proportionate to the competition concerns identified.

- capacity in gas import infrastructure;29

- mobile telecommunications network;31

- network for supplying traction current;32

21 See Merger Remedies Notice, paragraph 17.

CPI Antitrust Chronicle April 2020

- capacity in gas import infrastructure;29

- mobile telecommunications network;31

- network for supplying traction current;32

21 See Merger Remedies Notice, paragraph 17.

CPI Antitrust Chronicle April 2020

- capacity in gas import infrastructure;29

- mobile telecommunications network;31

- network for supplying traction current;32

21 See Merger Remedies Notice, paragraph 17.

CPI Antitrust Chronicle April 2020

- data under copyright.34

33 E.g. Case AT.39230 – Rio Tinto Alcan.

CPI Antitrust Chronicle April 2020

30th April, 2020

Mr. Ashok Kumar Gupta

Ms. Sangeeta Verma

Mr. Bhagwant Singh Bishnoi

Order under Section 31(1) of the Competition Act, 2002

1. On 16th April, 2020, the Competition Commission of India (Commission) received

Competition Appellate Tribunal. New Delhi

Global Tax Free Traders ..Petitioner

William Grant & Sons Limited ..Respondent

2015 CompLR 503 (CompAT) ; 4 (2015) CPJ 55 (TA) ;

G.S. Singhvi, J. (Chairman)

? William Grant's Family Reserve Scotch Whisky.

? Glenfiddich Single Malt Scotch Whisky.

? Balvenie Single Malt Scotch Whisky.

(Page 1 of 21) Printed For: RGNLU Users 11-02-2023 On: 04:11:PM

(Page 16 of 21) Printed For: RGNLU Users 11-02-2023 On: 04:11:PM

30th October, 2019

Mr. Ashok Kumar Gupta

Ms. Sangeeta Verma