FINAL DRAFT Subject: Corporate Law II Project Topic: Abuse of Dominant Position vis--vis Section 4 Of the CompetitionAct 2002

Submitted to: Mr. D. P. S. Rathore, Adjunct Professor of Law, Dr. RMLNLU.

Submitted by: Krishna Pratap Singh, Roll No. 071, Sec. A, B.A., LL.B. (Hons), Dr. RMLNLU.

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Table of Contents
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Introduction3 Prohibition of Abuse of Dominant Position..........3 Relevant Market.................................................................................................5 Dominant Position.........5 What Constitutes Abuse of Dominant Position.7 Miscellaneous 8 Case Study..9 Conclusion. .........13 Bibliography.14

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1. Introduction
Most of the modern competition laws across the globe primarily deal with three areas namely, anti-competitive agreements, the abuse of dominant position and mergers/combinations.The Competition Act, 2002 (as amended), [the Act], follows the philosophy of modern competition laws and aims at fostering competition and at protecting Indian markets against anticompetitive practices by enterprises. The Act prohibits anti-competitive agreements, the abuse of dominant position by enterprises, and regulates combinations (consisting of mergers, amalgamations and acquisitions) with a view to ensure that there is no adverse effect on competition in India.However, all these concepts essentially relate to the exploitation by a firm or a group of firms of their market power or use of improper means for attaining market power.1 This treatise deals with the subject matter in the following manner.It begins with the study of the general provisions of the law on the abuse of dominant position. It proceeds with the definition of dominant position while taking into account the factors to determine the dominant position.It explains the provisions identifying the conducts establishing an abuse of dominance and the underlying presumption of existence of dominanceinquiry into abuse of dominance and the penalties have also been looked into. Thus summarily dealing with few other things, it concludes the subject matter.

2. Prohibition of Abuse of Dominant Position

Section 4 of the Competition Act 2002 (hereinafter the Act) says that no enterprise or group shall abuse its dominant position. Thus abuse of dominant position by an enterprise is a serious violation under the Indian Competition Law. Abuse of a dominant position is a practice of an enterprise or a group of enterprises acting together using its dominant position in the market to restrict or prevent the competition in or remove the competitor from the market.Analysis of Abuse of Dominance involves determining status of an enterprise as dominant in the relevant market; and examining conduct of dominant enterprise as abusive. However, the statutory provision runs as follows:

Sally Van Siclen (OECD Secretariat), Abuse of Dominance and Monopolization, OCDE/GD(96)131. Accessed on 24th March 2012 and also available at: http://www.oecd.org/dataoecd/0/61/2379408.pdf. Page | 3

4. Abuse of dominant position.2[[(1) No enterprise or group shall abuse its dominant position.] (2) There shall be an abuse of dominant position 3[under sub-section (1), if an enterprise or a group], (a) directly or indirectly, imposes unfair or discriminatory-(i) condition in purchase or sale of goods or service; or (ii)price in purchase or sale (including predatory price) of goods or service. Explanation.--For the purposes of this clause, the unfair or discriminatory condition in purchase or sale of goods or service referred to in sub-clause (i) and unfair or discriminatory price in purchase or sale of goods (including predatory price) or service referred to in sub-clause (ii) shall not include such discriminatory condition or price which may be adopted to meet the competition; or (b) limits or restricts-(i) production of goods or provision of services or market therefor; or (ii)technical or scientific development relating to goods or services to the prejudice of consumers; or
(c)

indulges in practice or practices resulting in denial of market access 4[in any manner]; or

(d) makes conclusion of contracts subject to acceptance by other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts; or (e) uses its dominant position in one relevant market to enter into, or protect, other relevant market. Explanation.--For the purposes of this section, the expression-(a) "dominant position" means a position of strength, enjoyed by an enterprise, in the relevant market, in India, which enables it to-(i) operate independently of competitive forces prevailing in the relevant market; or
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Substituted for the following by the Competition (Amendment) Act, 2007 [Act No. 39 of 2007, w.e.f. 20-52009]. "(1) No enterprise shall abuse its dominant position." 3 Substituted by the Competition (Amendment) Act, 2007 [Act No. 39 of 2007] for the words, brackets and figure "under sub-section (1), if an enterprise". (w.e.f. 20-5-2009) 4 Inserted by the section 3(ii) of the Competition (Amendment) Act, 2007 [Act No. 39 of 2007, w-e-f 20-52009]. Page | 4

(ii)affect its competitors or consumers or the relevant market in its favour; (b) "predatory price" means the sale of goods or provision of services, at a price which is below the cost, as may be determined by regulations, of production of the goods or provision of services, with a view to reduce competition or eliminate the competitors.
(c)
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["group" shall have the same meaning as assigned to it in clause (b) of the Explanation to section 5.]

3. Relevant Market
The first step in determining whether an undertaking/enterprise/firm has abused its dominant position is defining the relevant market. The concept of relevant market has two dimensions namely, the relevant product market and the relevant geographical market. According to Blacks Law Dictionary (7th Ed), the product market is that part of the relevant market that applies to a firms particular product by identifying all reasonable substitutes for the product and by determining whether these substitutes limit the firms ability to affect prices. The relevant geographical market is a market comprising that area in which the conditions for the supply of goods and services are distinctly homogenous and can be distinguished from the conditions prevailing in the neighborhood areas.The Act, as mentioned earlier, expressly provides in Section 19 (5) that the Competition Commission shall have due regard to the relevant product market and the relevant geographical market in determining whether a market constitutes a relevant market for the purposes of the Act. The definition of relevant market provided by Section 2(r) of the Act also states that the relevant market means the market that may be determined by the Commission with reference to the relevant product market or the relevant geographical market or with reference to both. relevant product market and relevant geographic market have been specifically defined in the Indian Competition Act. Section 2 (t) defines the relevant product market as a market comprising all those products or services which are regarded as interchangeable or substitutable by the customer, by reason of the characteristics of the product or service, the prices and the intended use. Section 2 (s) defines the relevant geographic market as a market comprising the area in which the conditions of competition for supply of goods or provision of services are sufficiently homogeneous and can be distinguished from the conditions prevailing in neighbourhood areas.

4. Dominant Position
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Inserted by the section 3(iii) of the Competition (Amendment) Act, 2007 [Act No. 39 of 2007, w-e-f 20-52009]. Page | 5

4. A.] Definition of Dominant Position The general definition of dominant position or market power followed in jurisdictions such as the European Commission, United Kingdom, Australia, Germany and India take into account the ability of a firm or enterprise to behave independently of its competitors and the absence of competition or constraint from the conduct of competitors. The Indian Competition Act contains a definition of dominant position that takes into account whether the concerned enterprise is in such a position of economic strength that it can operate independently of competitive forces or can affect the relevant market in its favour. Explanation (a) to Section 4 of the Indian Competition Act defines dominant position as dominant position means a position of strength, enjoyed by an enterprise, in the relevant market in India, which enables it to(i) operate independently of competitive forces prevailing in the relevant market or (ii) affect its competitors or consumers or the relevant market in its favour. 4. B.]Factors to be taken into account to Determine Dominant Position A number of factors are taken into account to determine whether a particular undertaking or group of undertakings is in a dominant position in the relevant market. The factors to be taken into account are inter alia market share of the undertaking or enterprise, barriers to entry, size of competitors and financial power of the enterprise. In some jurisdictions, the competition legislations themselves specify the factors to be taken into account but in others case laws may have to be looked into to identify the factors. The Indian Competition Act 2002 expressly lay down the factors that are to be taken into account to determine dominant position. The Actstates under Section 19 (4) that the Commission shall, while inquiring whether an enterprise enjoys a dominant position or not under section 4, have due regard to all or any of the following factors, namely:-(a) market share of the enterprise; (b) size and resources of the enterprise; (c) size and importance of competitors; (d) economic power of the enterprise including commercial advantages over competitors; (e) vertical integration of the enterprises or sale or service network of such enterprise; (f) dependence of consumers on such enterprise; (g) monopoly or dominant position whether acquired as a result of any statute or by virtue of being a government company or public sector undertaking or otherwise;

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(h) entry barriers including barriers such as regulatory barriers, financial risk, high capital cost of entry, marketing entry barriers, technical entry barriers, economies of scale, high cost of substitutable goods or service for consumers; (i) countervailing buying power; (j) market structure and size of market; (k) social obligations and social costs; (l) relative advantage by way of the contribution to the economic development by the enterprise enjoying a dominant position having or likely to have an appreciable adverse effect on competition; (m)any other factor which the Commission may consider relevant for the inquiry.

4. C.] Presumption of Existence of Dominant Position As mentioned earlier the competition laws of certain countries, either under the statute itself or under the regulations thereunder or in case laws provide for a presumption of the existence of dominant position if an undertaking/enterprise/firm has a market share at or above a specified threshold. The German law, besides a general definition of dominant position, provides for a presumption of the existence of a dominant position based on the actual market share. Section 19 (3) states, An undertaking is presumed to be dominant if it has market share of at least one third. A number of undertakings is presumed to be dominant if it consists of three or fewer undertakings reaching a combined market share of 50 percent, or consists of five or fewer undertakings reaching a combined market share of two thirds, unless the undertakings demonstrate that the conditions of competition may be expected to maintain substantial competition between them, or that the number of undertakings has no paramount market position in relation to the remaining competitors. Thus, an undertaking having a market share of about 33.33 per cent would be presumed to be dominant. The German Law also provides for joint dominance, where three or fewer undertakings have a combined market share of 50 per cent or five or fewer undertakings have a combined market share of about 66.66 per cent. However, it may be noted that the market share tests are not conclusive, and the presumption of dominance may be overcome by showing that conditions may be expected to maintain substantial competition or that group with collective market share over the threshold does not in fact have a paramount market position in relation to removing competitors6. However, under the Indian Competition Act, there is no specific provision with regard to the presumption of dominance where an undertaking has a very large market share.

OECD (2004): Reviews of Regulatory Reform: The Role of Competition Policy in Regulatory Reform (Germany). Available at http://www.oecd.org/dataoecd/40/49/33841373.pdf. Page | 7

5. What Constitutes Abuse of Dominant Position?

Abuse of dominant position is not defined in most competition laws. However, many competition laws enumerate some conducts which, if engaged in by an enterprise in a dominant position as amounting to abuse of dominance. Different conducts have been expressly declared to amount to abuse of dominance under the competition laws of different jurisdictions. It may be noted that the list of practices specified in various laws as amounting to abuse of dominance is generally illustrative and not exhaustive. The Indian Competition Act also does not define abuse of dominance. According to section 4(2) of the Act, There shall be an abuse of dominant position 7[under sub-section (1), if an enterprise or a group], (f) directly or indirectly, imposes unfair or discriminatory-(iii) (iv) condition in purchase or sale of goods or service; or price in purchase or sale (including predatory price) of goods or service.

Explanation.--For the purposes of this clause, the unfair or discriminatory condition in purchase or sale of goods or service referred to in sub-clause (i) and unfair or discriminatory price in purchase or sale of goods (including predatory price) or service referred to in sub-clause (ii) shall not include such discriminatory condition or price which may be adopted to meet the competition; or (g) limits or restricts-(iii) production of goods or provision of services or market therefor; or

(iv) technical or scientific development relating to goods or services to the prejudice of consumers; or
(h)

indulges in practice or practices resulting in denial of market access 8[in any manner]; or

(i) makes conclusion of contracts subject to acceptance by other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts; or (j) uses its dominant position in one relevant market to enter into, or protect, other relevant market.

Substituted by the Competition (Amendment) Act, 2007 [Act No. 39 of 2007] for the words, brackets and figure "under sub-section (1), if an enterprise". (w.e.f. 20-5-2009) 8 Inserted by the section 3(ii) of the Competition (Amendment) Act, 2007 [Act No. 39 of 2007, w-e-f 20-52009]. Page | 8

6. Miscellaneous
6. A.] Predatory Pricing Predatory Pricing has not been mentioned specifically in the competition laws of most of the jurisdictions studied as amounting to an abuse of dominance. However, in section 4 under the Indian Competition Act, directly or indirectly imposing unfair or discriminatory price in the purchase or sale (including predatory pricing) of goods or services has been specified as amounting to an abuse of dominance if engaged in by a dominant enterprise. Explanation (b) to section 4 states that predatory price means the sale of goods or provision of services, at a price which is below the cost, as may be determined by regulations, of production of the goods or provision of services, with a view to reduce competition or eliminate the competitors. The traditional theory of predatory pricing is that the predator, already a dominant firm sets prices so low for a sufficient period of time that its competitors leave the market and others are deterred from entering and the losses incurred due to the low prices, which like any investment, will be recovered by future gains. This theory was later supplemented by the argument that the benefits of predation were not limited to the market where it predated9. 6. B.] Exemptions Although abuse of dominance by an undertaking/enterprise/firm or certain conducts by dominant firms or firms having monopoly or market power are generally prohibited under competition law, certain exemptions or exclusions have been provided under some competition laws. Under the Indian Competition Act, though no exclusions have been provided for as such, the definition of enterprise in section 2 (h) specifically provides that enterprise does not include any activity of the government relatable to the sovereign functions of the government including all activities carried on by the departments of the Central Government dealing with atomic energy, currency, defense and space.

7. Case Study
7.A.] Magnolia Flat Owners Association v DLF Universal Limited (Reference was made to Belaire Owners Association v DLF Limited, Case No. 19 of 2010 (Date of Order: 12.8.2011) Forum: Competition Commission of India Decided On: 31 January 2012 Brief Facts: Sometime in August 2005, DLF invited applications for booking of apartments in the Group Housing Complex "Magnolia" consisting of 19 (Nineteen) multi-storied residential buildings of 17 (Seventeen) floors each in Phase-V in DLF City, Gurgaon, Haryana with a
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OECD (1989): Predatory Pricing. Available At: http://www.oecd.org/dataoecd/7/54/2375661.pdf Page | 9

representation that the construction of the complex shall be completed and possession would be handed over within a period of 36 (Thirty Six) months from the date of the execution of the apartment buyer's agreement with the allottees subject to timely payment in accordance with the payment schedule as demanded by DLF and further with a provision, that if DLF fails to construct and complete the complex within the said time, it shall pay to the allottees, compensation at the rate of Rs. 5 per sq. ft. of the super area per month for the period of delay. The payment plan was spread over a period of 2.5 years with 90% (Ninety Percent) of amount of sale consideration payable till December 2007 and the balance 10% (Ten Percent) on the receipt of occupation certificate by DLF from the authorities. Acting on the representations and promises by DLF, members of the informant association started booking their apartments in the complex from August-September 2005 onwards. However, DLF could not transfer the possession till July 2009. It later informed that the final possession can only be given by June 2011, a delay of 2 years and 4 months from the promised possession. Brief of Allegations against DLF: The informant Magnolia Flat Owners Association alleged the abuse of dominant position by the Defendant on the following amongst other grounds: (i) Commencement of project without Sanction/Approval of the projects (ii) Increase in number of floors mid-way (iii)Issue of Floor Area Ratio and Density per Acre (iv)Time Schedule for completion and possession (v) Forfeiture of Amounts Investigation by DG: The Director General of Investigation conducted the investigation and concluded that: (1) Determination of Relevant Market: Based upon exhaustive analysis, DG has stated that the relevant market in terms of relevant product and relevant geographic market in this case would be services provided by developers/builders for construction of high end residential buildings carried out in Gurgaon. (2) Dominance of DLF: DG has come to a conclusion that DLF enjoys position of dominance in the aforesaid relevant market in terms of explanation (a) to section 4 read with section 19(4) of the Act. As regards dominance of DLF in the relevant market, DG has inter-alia, concluded as under: "...The above analysis of factors in section 19(4) establishes that DLF group is not only enjoying the highest market share, but is also enjoying clear advantage over other players as
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far as size and resources and economic power is concerned. Its economies of scale, resources, and the fact of it being in business since last sixty years is also giving it a distinct advantage over the other players in the market. " DG has also relied upon ruling of The European Court of Justice in United Brands v Commission10 in which it has been stated that, "the dominant position relates to a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained in the relevant market by affording it the power to behave to an appreciable extent independently of its competitors, customers and ultimately its consumers."11 (3) Abuse of Dominant Position: DG has concluded that in terms of section 4(2) (a) of the Act, the aforesaid conditions under which services have been provided by DLF are unfair. DG has also reported that an analysis of terms and conditions of agreement with the buyers shows that the terms and conditions of provision of services are loaded heavily in favour of DLF Limited. The company has been able to impose the unfair conditions by abusing its dominant position through the agreements which have been executed with the allottees. DG has found these agreements unfair on many counts. Some of those unfair conditions mentioned in the buyer's agreement are as under: (i) Clauses 1.1, 1.5, 1.6, 1.7, 1.8, 1.9 relating to determination of, Carpet Area, Super Area etc. (ii) Clauses 3 and 4 relating to amount paid by apartment allottee with application and Earnest Money. (iii)Clause 7 relating to adjustment / appropriation of payments (iv)Clause 8 relating to payments in time (v) Clause 9.1 and Clause 9.2 relating to major alteration/modification (vi)Clause 10.1 relating to permission to enter for carrying out interior works. (vii) Clause 10.2 relating to schedule for possession of the said apartment (viii) Clause 10.3 relating to procedure for taking possession (ix)Clause 10.4 relating to failure of apartment allottee to take possession (x) Clause 11.1 concerning delay due to reasons beyond the control of the company (xi)Clause 11.3 Failure to deliver possession by the company: Remedy to apartment allottee (xii) Clause 11.4(Failure to deliver possession: Remedy to the company (xiii) Clause 12 (Events of defaults and consequences) (xiv) Clause 20 (Alteration of unsold units) (xv) Clause 22 of "the agreement relating to the right to make additional construction to the Company (xvi) Clauses 23 and 24 relating to company's right to raise finance (xvii) Clause 32 of the agreement relating to the right to correct, modify, amend or change all the annexure attached to the agreement at sole discretion of the company. Issues:
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Available At: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61976CJ0027:EN:PDF Ibid. pp. 227. Page | 11

Issue 1 Do the provisions of Competition Act, 2002 apply to the facts and circumstances of the instant case? Issue 2 What is the relevant market, in the context of section 4 read with section 2 (r), section 19 (5), section 19(6) and section 19(7) of the Competition Act, 2002? Issue 3 Is DLF Ltd. dominant in the above relevant market, in the context of section 4 read with section 19 (4) of the Competition Act? Issue 4 In case DLF Ltd. is found to be dominant, is there any abuse of its dominant position in the relevant market by the above party?

Decision of the Commission: Issue 1 Do the provisions of Competition Act, 2002 apply to the facts and circumstances of the instant case? It is clear that the meaning of service as envisaged under the Act is of very wide magnitude and is not exhaustive in application. It is not disputed that DLF undertakes to construct apartment intended for sale to the potential consumers after developing the land. Therefore, it is explicit that this kind of activity is a provision of service in connection with business of commercial matters such as real estate or construction. Hence, the contention raised on behalf of the DLF that sale of an apartment is not covered under the definition of service is wholly misplaced and is devoid of any substance. Issue 2 What is the relevant market, in the context of section 4 read with section 2 (r), section 19 (5), section 19(6) and section 19(7) of the Competition Act, 2002? In conclusion, on this issue, this Commission is of the view that the relevant market is the market for services of developer / builder in respect of high-end residential accommodation in Gurgaon. Issue 3 Is DLF Ltd. dominant in the above relevant market, in the context of section 4 read with section 19 (4) of the Competition Act? As can be seen from the discussion above from every logical angle, DLF Ltd. and its subsidiaries have a considerably higher position of strength in the relevant market in comparison with its competitors due to several factors which have been elaborated upon. Its competitors may be large but do not compare to the strength of DLF. In context of the historical presence of DLF in the market, its superior level of vertical integration, its presence in nonresidential segment of real estate, its financial strength etc., there can be no doubt that DLF Ltd. is way ahead of its competitors in terms of its ability to operate independently of competitive forces or affect its competitors or consumers or the relevant market in its favour. This Commission concludes that DLF Ltd. is in a dominant position in the relevant market in the context of Section 4 read with Section 19(4) of the Act.
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Issue 4 In case DLF Ltd. is found to be dominant, is there any abuse of its dominant position in the relevant market by the above party? These are some of the clauses that show how heavily loaded the buyers agreement is in favour of DLF Ltd. and against the buyer. Under normal market scenario, a seller would be wary of including such one-sided and biased clauses in its agreements with consumers. The impunity with which these clauses have been imposed, the brutal disregard to consumer right that has been displayed in its action of cancelling allotments and forfeiting deposits and the deliberate strategy of obfuscating the terms and keeping buyers in the dark about the eventual shape, size, and location etc. of the apartment cannot be termed as fair. The course the progress of the project has taken again indicates that DLF Ltd. beguiled and entrapped buyers through false solicitations and promises. It is noted that the Competition Act only requires this Commission to ascertain if some conduct is unfair in terms of section 4 of the Act and is being carried on by a dominant enterprise. This Commission has no doubt that the nature of clauses and conduct as indicated in earlier paras are blatantly unfair, even exploitative. The dominant position of DLF Ltd. has already been established. In view of the foregoing discussion, this Commission finds DLF Ltd. in contravention of section 4 (2) (a) (i) of the Act.

8. Conclusion
Thus abuse of dominant position by an enterprise is a serious violation under the Indian Competition Act. Section 4 of the Act specifically states that no enterprise shall abuse its dominant position. It also states that there shall be an abuse of dominant position if an enterprise imposes unfair or discriminatory conditions or prices in the purchase or sale of goods or provision of services or if it limits or restricts production of goods or provision of services or technical and scientific development or it denies market access, etc. It is interesting to note that dominant position is not defined on the basis of any arithmetical parameters or any particular share of the market as is the case in the MRTP Act, 1969. On the other hand, dominance of an enterprise is to be judged by its power to operate independently of competitive forces or to affect its competitors or consumers in its favour. Thus, an enterprise with a share of say less than 25% of the market could possibly be determined to be the dominant if it satisfies the above criteria; on the other hand, an enterprise with higher market share may not be considered as dominant if it does not meet the criteria mentioned in the Act. The Act also lays down a number of factors which the Commission needs to take into consideration in determining whether an enterprise enjoys a dominant position or not, such as market share, size and resources of the enterprise, size and importance of competitors, economic power of the enterprises, vertical integration of the enterprises, entry barriers, etc. which would involve a fair amount of economic analysis. In case an enterprise is held by the Competition Commission of India to have abused its dominant position, there are penalties that can be imposed and various directions that can be
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given by the Commission. It can impose a penalty of not more than 10% of the turnover of the enterprise. It can pass a cease and desist order, and pass such other orders as may be considered appropriate. It can also recommend to the Central Government for division of dominant enterprise.

Bibliography
Books Referred
1.

Avtar Singh, Mercantile Law, Eighth Edition (Reprint), Eastern Book Company (Lucknow 2008).

Articles Referred
1.

Abuse of Dominance, Available at: http://www.cci.gov.in/images/media/Advocacy/AOD2012.pdf Mallika Ramachandran, Comparative Study: Law on Abuse of Dominant Position, Available at: http://cci.gov.in/images/media/ResearchReports/ComparativeStudyLaw_ mallikaramachandran09022007_20080411100811.pdf Abuse of Dominance in the Indian Competition Law, Available at: http://cci.gov.in/images/media/articles/abuse_20080409115506.pdf

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