Whether Burgin and Burkes leveraged its dominant position as an e-commerce

marketplace to strengthen its position in the market for payment processing services
in Westeros, in contravention of Section 4(2)(e) of the Competition Act?

It is humbly submitted before the Hon'ble court that the Burgin and Burkes does not
hold dominant position as an e-commerce marketplace and even we were to assume
that they are dominant in the marketplace they have not used there dominant position
to strengthen its position in the market for payment processing services in Westeros,
in contravention of Section 4(2)(e) of the Competition Act. There is failure on the part
of DG while determining the relevant market in the present case and has wrongly
accused Burgin and Burkes in his report, Burgin and Burkes faces tough competition
in the market for e commerce marketplace services from both the unorganised
segment from Madam Malkin how has a similar market share and other 4-5 small
marketplaces.

(2.1) No presence of Dominant position

In Walker Process, US Supreme Court found it essential to define relevant market

because "without a definition of that market there is no way to measure the defendants
ability to lessen or destroy competition." Alcoa's Case the District Court had
computed Alcoa's market share to be about 33%; however after re-defining the
relevant market, the Circuit Court computed the share to be over 90%. In Dentsply
Case, the Third Circuit held that the relevant market for artificial teeth included dental
dealers as well as dental labs (district court only included dental labs in the
definition).

In US many lower courts continue to regard market share as the starting point in
assessing monopoly power, while others consider market share and entry barrier
simultaneously.

Establishing abuse of dominance of an enterprise or a group under the provisions of

the Act is a three-stage process:

(a) Defining the relevant market;

(b) Determining dominance in the relevant market; and

(c) Determining abusive conduct in the relevant market.

The ascertainment of the relevant market is essential for analyzing a case of abuse of
dominance. The dominant position of an enterprise or a group within an identified
'relevant market' has to be established first When determining what constitutes the
relevant market, due regard must be given to both the relevant product as well as
geographic market.
Relevant market at the first instance is important to know because it is through this
market only the Competition Commission and the various other commissions
worldwide decides whether an enterprisexi has the power to control prices or exclude
competition.

It was held in the case of Competition Commission Of India vs Co-Ordination

Committee Of India", "The purpose of defining the 'relevant market' is to assess with
identifying in a systematic way the competitive constraints that undertakings face
when operating in a market.

This is the case in particular for determining if undertakings are competitors or

potential competitors and when assessing the anti-competitive effects of conduct in a
market. The concept of relevant market implies that there could be an effective
competition between the products which form part of it and this presupposes that
there is a sufficient degree of interchangeability between all the products forming part
of the same market insofar as specific use of such product is concerned."

It is most humbly submitted that in the present case that there was an error on the part
of DG while defining the relevant market by the DG. It is submitted that u/s 2(r) '4
"relevant market" means the market which may be determined by the Commission
with reference to the relevant product market or the relevant geographic market or
with reference to both the markets ;

(2.1.1) Relevent product market

Relevant Product Market is defined under section 2(t) which means a market
comprising 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 in the case of In Re: Mohit Manglani v. M/s Flipkart
India Private Limited and Others(COMPETITION COMMISSION OF INDIA Case
No. 80 of 2014)

In the present case, the relevant product market consists of products sold not only on
e-commerce websites but also by unorganized sectors which in most number of cases
is the offline market, as these two are considered part of the same relevant market.

In India the position with respect to the platform being substitutable or not was first
discussed in the case of Ashish Ahuja v. Snapdeal( xix) wherein the online and offline
markets were held to be mere different distribution channel and part of same relevant
market, which in the case of flipkart was judiciously decided to be not in a position as
of now to figure this out(xx). The similar view was also taken in the case of In Re:
Mohit Manglani v. M/s Flipkart India Private Limited and Othersxxi, wherein the CCI
agreed to the OPs view and held "these two markets are different channels of
distribution of the same product and are not two different relevant markets."

(2.1.1) Relevant Geogharphical market

The 'relevant geographic market' is also taken into consideration to identify the
relevant market. Relevant geographic market has been defined under Section 2(s) of
the Act as the market comprising the area in which the conditions of Competition for
supply of goods or provision of services or demand of goods or services are distinctly
homogenous and can be distinguished with the conditions prevailing in that area

In the case at hand Daigon Alley’s parent company is a technology company based in
United States of America, with operations in Westeros and many other countries
across the world. It incorporated an indirect wholly-owned subsidiary in Westeros

In the case of Sunil Bansal v Jaiprakash Associates Ltd 261 the issue for consideration
was whether the Jaypee Group had abused its dominant position in its business of
creating integrated townships. Commission held that since there was sufficient degree
of inter-changeability of residential apartments in standalone apartment projects with
so called integrated township in present case, integrated township did not constitute a
distinct product market. Therefore, relevant product market in present case was
considered as market for "provision of services for development and sale of
residential apartments" in Noida and Greater Noida regions'. 1262

The Commission noted that there were several established real estate players (who
had been operational in relevant geographic market for decades) offering world class
amenities. Accordingly, a large number of options were available to consumers who
could actually choose from a wide range of projects launched/developed by several
builders and developers in geographic region. Further, rapid growth of real estate
sector together with presence of several big, small and medium sized companies in
market was demonstrative of absence of entry barriers/foreclosure of competition. The
Commission held that JAL/JIL did not enjoy a position of dominance in market for
provision of services for development and sale of residential apartments in Noida and
Greater Noida. 1263

In the present case as well the relevant product market is the services provided on e-
commerce marketplaces. These services are interchangeable, with multiple enterprises
like Madam Malkin and several other small marketplaces offering similar services.
This indicates that there are no significant barriers to entry for new enterprises, and
thus, Diagon Alley does not hold a dominant position.
It can be seen that it only has a market share of 39% in the market of e retail segment.
Since only a firm with market share of 40-45% is construed to have a dominant
position in the market7 , and 40% according to Article 102 of the Treaty on the
Functioning of the European Union (TFEU) it is evident that Gringotts Pay does not
have a sufficient market share.

It is necessary for an enterprise or a group of enterprise to be dominant in one

relevant market for the purpose of violation of §4(2)(e) of the Act. 73 In the instant
case, the Burgin and Burkes are not dominant in the relevant market of provision of e
commerce services.

It is respectfully submitted that objective justification for anti-competitive practice

can be afforded by a dominant enterprise in against an allegation of violation of §4(2)
(e) of the Act. 25 Additionally, the conduct of dominant enterprise must lead to
substantial elimination of competition in the secondary market due to the restriction
on the availability of input for the purpose of abuse under §4(2)(e) of the Act. 26 In
the case at hand, there is a clear objective justification for Diagon Alley's actions. The
company intended to offer a seamless experience for its customers, ensuring that they
could purchase services on their platform with ease. This included providing a
payment option that was not only safe and secure but also efficient, thereby enhancing
the overall user experience and fostering trust and satisfaction among their customer
base.