RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PUNJAB

In complete fulfilment for requirement of project on Criminal Law

Specialization of B.A., L.L.B (Hons.), Ninth Semester

INFLUENCE OF US AND EU SYSTEMS ON THE DOMINANT POSITION UNDER

COMPETITION LAW IN INDIA

Submitted on: October 5, 2020

Submitted to: Submitted by:

Dr. Shruti Goyal Shaurya Aron

Professor of Law 16132
RGNUL, Punjab Business Law
 RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PUNJAB

TABLE OF CONTENTS

SUPERVISOR’S CERTIFICATE..............................................................................................2

CANDIDATE’S CERTIFICATE...............................................................................................3

ACKNOWLEDGMENTS..........................................................................................................4

RESEARCH METHODOLOGY...............................................................................................5

INTRODUCTION....................................................................................................................7

CCI’S APPROACH TOWARDS RELEVANT MARKET...........................................................9

ABUSE OF DOMINANT POSITION.......................................................................................15

INDIAN APPROACH..........................................................................................................15

DOMINANT POSITION...................................................................................................16

ASSESSMENT OF DOMINANT POSITION...........................................................................19

US AND EU JURISPRUDENCE FOR ABUSE OF DOMINANCE: A COMPARISON.................21

EXPLOITATIVE ABUSES...................................................................................................22

Excessive Pricing........................................................................................................22

EXCLUSIONARY ABUSES.................................................................................................23

APPROACH FOR DETERMINATION OF DOMINANT POSITION BY CCI............................25

BIBLIOGRAPHY..................................................................................................................31
 RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PUNJAB

Dr. Shruti Goyal Dated ______

Professor of Law Place: Patiala

Rajiv Gandhi National University of Law, Punjab

SUPERVISOR’S CERTIFICATE

This is to certify that the project entitled: “Influence of US and EU Systems on the
Dominant position under Competition Law in India” submitted to Rajiv Gandhi
National University of Law, Punjab, in complete fulfillment of the requirements for
B.A.L.L.B (Hons.), Five-year Integrated Course, ninth semester, is an original and
bonafide research work carried out by Shaurya Aron under my supervision and
guidance. It is further certified that no part of this study has been submitted to any
University for the award of any Degree or Diploma whatsoever.

Dr. Shruti Goyal

 RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PUNJAB

CANDIDATE’S CERTIFICATE

I, the undersigned, hereby solemnly declare that the Project Entitled: “Influence of US
and EU Systems on the Dominant position under Competition Law in India” submitted
to Rajiv Gandhi National University of Law, Punjab, in complete fulfillment of the
requirements of the B.A.L.L.B (Hons.), Five-year Integrated Course, ninth semester, is an
original and bonafide research work of mine. I hope that this work will be helpful in
enhancing the knowledge of readers and framing of the policies in the future course. All
the information declared hereby is true to best of my knowledge.

It is also hereby declared that the Copyright of the Research Project vests with the author,
i.e., the undersigned.

_____________________________________

Shaurya Aron

B.A.L.L.B: 9th Semester

Roll No.: 16132

Business Law Specialization

RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PUNJAB
 RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PUNJAB

ACKNOWLEDGMENTS

On the completion of this project, I would like to place on record my sincere gratitude
towards all those people who have been instrumental in its making.

Firstly, I would like to thank my worthy supervisor, Dr. Shruti Goyal, Professor of Law at
Rajiv Gandhi National University of Law, for all her support and encouragement without
which the completion of this project could not have been possible.

I would like to thank the library staff at Rajiv Gandhi National University of Law for
helping me find the relevant books on the subject matter of this paper.

I would especially thank my parents who supported me, directly and indirectly, in the
successful completion of this project. It was their constant support; motivation and
guidance that helped me pave my way through.

Lastly, I would like to help my friends, who were more than helpful and were a constant
source of motivation to help me stride forth.

Shaurya Aron

Roll No.: 16132

Ninth Semester
 RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PUNJAB

RESEARCH METHODOLOGY

STATEMENT OF PROBLEM

The effective implementation of the Competition laws and policies across the world is
necessary for keeping a check on the activities and behaviour of enterprises. The same is
important for the protection of the interests of the consumers and other competitors,
bigger or smaller alike, and for the proper implementation of the internal policies of the
enterprise relating to efficient allocation of resources. The biggest challenge that
legislators of various countries face in this regard is the delineation of relevant market for
determining the dominant position of an enterprise. The author in this note discusses the
approach that the Competition Commission of India has taken over time in determining
the relevant market of the operating area of the enterprise and whether it is abusing its
dominant position.

RESEARCH QUESTIONS

Author has brought to the light the shift in approach of the Indian Competition Law and
CCI in dealing with the Abuse of Dominant cases. There has been a fascinating shift from
more dependence on EU than US dealing with abuse of dominance cases. This is very
obvious from the way that the notion of ‘monopolistic trade practices’ under the MRTP
Act was much closer to US law of ‘monopolisation’, whereas the notion of ‘abuse of
dominance’ under the Competition Act is closer to the EU text in Article 102 which
illegalises abuse of a dominant position.

RESEARCH OBJECTIVES

The author, in pursuance of the main theme of the Review, has compared the idea of
Abuse of dominance positions of enterprises in US and EU systems, keeping in mind the
differences between civil law and common law systems. Fundamental contrasts are drawn
out in the approach of the two systems regarding the same.

SCOPE AND LIMITATIONS OF STUDY

 RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PUNJAB

There is an analysis of the extent till which the Indian Competition Law has drawn
influence from the US and EU systems of the Anti-Trust Laws and the extent of influence
of the EU system on the newer emphasis on Abuse of Dominant position approach in the
Indian Competition Law System.

RESEARCH METHODOLOGY

I feel great pleasure in presenting the project under study. I hope that the readers will find
the project interesting and that the project in its present from shall be well received by all.
The project contains the assessment, explanation, and analysis relating to the topic
“Influence of US and EU Systems on the Dominant position under Competition Law in
India”.

I have tried to follow mixture of objective and subjective methodology wherein I have
used the data and information accumulated through research. Such data is presented along
with opinions of author in order to present a refined picture for the readers to understand.
The research project has been theoretically analyzed in light of historical as well as recent
concepts and case laws. It principally makes use of secondary sources ranging from
esteemed law journals including Harvard Law Review and materials from Oxford
University Press along with newspaper editorial articles.

Author has also made a reference to authoritative books from both national and
international perspectives on the topic wherever necessary. This research has been done
with utmost sincerity to ensure the true depiction of facts and that the research is
unbiased. By the process of multiple reading, prejudice of the researcher has been done
away with and all data have been verified. Any similarity is purely coincidental.
 RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PUNJAB

INTRODUCTION

Competition law consists of rules that are intended to protect the process of competition
in order to maximize consumer welfare. Competition law has grown at phenomenal rate
in recent years in response to the enormous changes in the political thinking and
economic behavior world over. Competition law is concerned with applying legal rules
and standard to address market imperfections and to preserve, promote and sometimes
restore market conditions conducive to competition. In other words, it is law used to
protect the competition1.

In USA, Sherman Act, 1980 was enacted to keep a check on the competition prevailing in
the market. The provisions of the said Act provided that every contract, combination in
form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the
several States, or with foreign nations, is declared to be illegal. Sherman Act seeks to
promote fair competition and protects consumers and businesses from anti-competitive
business policies.

In UK, Competition Act, 1998 was enacted for prohibiting anti-competitive practices
adopted by the entrepreneurs in the market. The Act contains two prohibitions, one
modeled on Article 81 EC which forbids agreements, decisions by associations of
undertakings and concerted practices that have as their object or effect the restriction of
competition and the other is modeled on Article 102 EC which forbids the abuse of
dominant position.

India has finally adopted its Competition Act in 2002 and has been made effected from
20-5- 2009. Before the passing of the Competition Act, the Monopolies and Restrictive
Trade Policies Act, 1969 (MRTP Act) was in operation. The MRTP Act dealt with the
concept of monopolistic and restrictive trade practices and subsequently with the unfair
trade practices. The MRTP Act was designed to avoid economic concentration of the
power in the Indian economy. The need for Competition Act had arisen because the

1
MAHER M. DABBAH, EC AND UK COMPETITION LAW COMMENTARY, CASES AND MATERIALS, Pg 6.
 RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PUNJAB

MRTP Act had become obsolete in certain areas in the light of international economic
developments relating to competition laws.

The Competition Act, 2002 aims to prevent the practices having adverse effect on
competition and abuse of dominance of enterprises either by entering into anti-
competitive agreements or combinations.

Section 4(1)2 of the Indian Competition Act states, “No Enterprise shall abuse its
dominant position”

There are principally three phases to decide if any enterprise abuses its dominant
position The primary step is determining the relevant market. Then next is deciding if that
endeavour/venture holds a dominant position/enjoys considerable level of market
control/holds monopoly control. The last step is to assure if that endeavour enjoys a
dominant position/has considerable market control/holds monopoly power and is involved
with conducts particularly precluded under statute or adding up to abuse of dominant
position/ monopoly or aim of monopolising dealt by relevant law.

The leading jurisdictions across the world treat abuse of dominance as a serious
anti-competitive activity and punishes the wrong-doers in that regard. Dominance is not
considered a per-se offence in any jurisdiction examined therein but these jurisdictions
examine relevant market differently. The European Commission in a number of
judgments stated the criteria to be examined in determining the relevant market in abuse
of dominance cases. In Hoffmann La Roche v Commission3, NV Nederlandsche Banden
Industrie Michelin v Commission4 and Oscar Bronner GMBH5, it is observed that it is
essential to define the relevant market both from the geographical and the product market
perspectives.

In the European Union (EU), for the purposes of Article 102 the Treaty on the
Functioning of the European Union (TFEU), the proper definition of the relevant market
is a necessary precondition for any alleged anti-competitive behaviour, since, before an
2
§ 4(1), Competition Act, 2002.
3
Case 85/76, ECR 461.
4
Case C-322/81 ECR 3461 [1983].
5
Case C-7/97, ECR. I-7791 [1998].
 RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PUNJAB

abuse of a dominant position is ascertained, it is necessary to establish the existence of a

dominant position in a given market, which presupposes that such a market has already
been defined.

In the United States (US), abuse of dominance is tested seriously with the first
consideration of relevant market. The courts have emphasized the importance of first
defining the relevant markets by taking into account both the product and geographic
aspects in the following cases, Walker Process Equipments Inc. v Food6, Machinery and
Chemical Corp7, E. & G. Gabriel v Gabriel Bros., Inc, Image Technical Services Inc v.
Eastman Kodak Co8, Green Country Food Market, Inc v. Bottling Group 9, LLC and
Bottling Group Holdings Inc, United States v. E.I. du Pont de Nemours & Co. 10, Brown
Shoe Co. v. United States.11

India applies its own criteria to determine abuse of dominance. Section 4 of the
Competition Act, 2002, as amended by the Competition (Amendment) Act, 2007,
prohibits the abuse of dominance by any enterprise or group of enterprises. 12 The Act
prescribes a three-step test for the determination of abuse of dominance: defining the
relevant market; assessing dominance in the relevant market; and establishing abuse of
dominance. Each of the above steps is key to establishing liability under section 4 of the
Competition Act, 2002, as amended by the Competition (Amendment). The references
relating to US and EU had been taken due to the fact the laws in those jurisdictions are in
practice for long and Court decisions had created jurisprudence as opposed to India,
where the provisions are new and Competition Commission of India’s working also very
recent.

CCI’S APPROACH TOWARDS RELEVANT MARKET

Determination of "relevant market" is extremely fundamental for successful

implementation of the Competition Law. For CCI, such outline elucidates the space inside
6
382 U.S. 172 (86 S.Ct. 347, 15 L.Ed.2d 247).
7
Ibid.
8
504 U.S. 451 (1992).
9
371 F.3d 1275.
10
351 U.S. 377 (1956).
11
June 25, 1962. 370 U.S. 294
12
Section 4 of the Competition Act, 2002, as amended by the Competition (Amendment) Act, 2007.
 RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PUNJAB

which it is required to adjudge upon the cases of Competition. It is to be sure that initial
phase in the examination of behaviour with respect to the market players concerned.

Our Competition Act is according to thought and reasoning of present day

competition laws and it restricts the abuse of dominant position by companies as well as
enumerates those activities which should the enterprises should abstain from. Dominance
is the capacity of the venture to act autonomously of the market powers that decide
overwhelming position. However, it is not dominance which is our concern but abuse of
dominance. It is the duty of CCI to examine this abuse of dominance skilfully, from case
to case, based on the criteria mentioned under the Competition Act. The most important
aspect of such examination is the determination of relevant market. After the relevant
market is delineated then the dominance becomes essential. The small arrangement of
items presents in the market that are researched to understand the anti-competitive
behaviour is called relevant market. It is related to that course of trade wherein
competition is under restrain in the concerned geographic area. It includes those items
which can be substituted in a reasonable manner and all the competitors towards whom
consumers can move if there is any significant rise in the prices.

Relevant market has a characteristic defined according to customer/buyer

inclinations as well as activities and it can be of two kinds: “relevant product market” and
“relevant geographic market”. The “relevant product market” includes items/benefits that
are viewed as tradable, or substitutable, by the purchaser and the “relevant
geographic market” involves that territory in which factors that determine competition
remain particularly homogeneous. As per the notice issued by European Commission
which defines relevant market; relevant geographic market must be defined by
considering following major factors: i) The region where the endeavors are associated
with the supply and demand of products and services, (ii) The region where the factors of
competition adequately homogeneous as well as the area which is distinguishable from
neighboring territories due to the differentiation of the factors of competition in different
area. In the relevant market the sellers offer the required products and services and
consumers realistically buy the same. In the historic case of Tampa Electric, the definition
 RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PUNJAB

of relevant geographic market is given as “the market area in which the seller operates,
and to which the purchaser can practicably turn for supplies” 13.

13
Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 327 (1961)
 RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PUNJAB

THE INDIAN COMPETITION ACT

Section 19 (5) of the Indian Competition Act14 pertinently mentions, to decide a

market to be relevant market for the Act, a due regard is need to give by CCI to relevant
product market and relevant geographical market. The relevant product market and
relevant geographical market are defined in Section 2(t) and Section 2(s) of the Act
respectively. According to Section 2 (t), “relevant product market 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.”15 Under Section 2(s), “relevant geographic market means
a 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 from the conditions prevailing in the neighbouring areas.”16

In the viable world, be that as it may, such a determination is now and then just
imprecise. Regardless of how one characterizes the “relevant market”, it is fairly tough to
anticipate the responses of buyers/customers to a cost increment. At this point the
research to determine the relevant market becomes important. A decent examination
would include recognizing critical monetary operators and investigation about their
operations according to the given case. CCI being the guardian had been endowed upon
with this activity which not the slightest bit can be said to be a simple undertaking. It is
the significant goal of the competition authorities to guarantee that a viable competition is
there in in the market and additionally, it is kept up in a manner The competition
authorities have a significant goal to maintain viable competition in concerned market and
additionally, they maintain it in a manner that any business movement and negotiation
doesn’t deflect it. Be that as it may, law being dynamic will undoubtedly witness logical
inconsistencies.

CCI has assumed a forward-looking methodology in its meaning of the relevant

market in the high-innovation market in a case of abuse of dominance against Intel17. The
14
§ 19(5), Competition Act, 2002.
15
§ 2(t), Competition Act, 2002.
16
§ 2(s), Competition Act, 2002.
17
ESYS Information Technologies (P) Ltd. v. Intel Corporation. (Intel Inc.), (2014) CCI 4.
 RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PUNJAB

Commission concurred, Intel delighted in predominant position in the initial three out of
the four relevant markets. In any case, in connection to abuse of dominance, the
Commission watched that there were no conditions that were forced on the informant by
Intel in the agreement that were deemed unfair. It was affirmed that a standard approach
of characterizing relevant markets won't not be material on account of dynamic high-
innovation markets since in such markets, the substitutability between items changes with
mechanical headway.

In Coca Cola18 order, the opposite parties, Coca Cola and INOX, went into a
consensus and in compatibility of that consensus Coca Cola has been providing its items
which incorporate bundled drinking water as well as soda pops offered at expanded as
well as extravagant value which is in sharp difference with typical cost of same items in
open market. As per the informant, HCCBPL and ILPL are revelling into unfair
evaluating approach by offering items with same quality, amount, standard and bundle at
various costs to various purchasers, i.e. higher costs from the purchasers at ILPL complex
and lower costs from the purchasers in open market. The Commission characterized the
market to be multiplexes all around India, and not just the ones claimed by ILPL being
referred to. The orders like this make it obviously evident that there needs to be a
distinction between markets outside and markets inside particular retail outlets. This kind
of investigation demonstrates to us that there is a desperate need to gather information
and financial skill in determining relevant markets since this idea is indispensable piece of
competition law.

Another relevant case is RamakantKini, In re19, wherein a lady registered with Dr

Hiranandani Super Speciality Hospital for the delivery of her second child had made
arrangements with Life Cell India (P) Ltd. for banking her stem cells. However, since the
hospital had an exclusive arrangement with Cryobanks International India for the same,
they refused to entertain the lady's plea to allow Life Cell India to handle the same. The
hospital was penalised for the abuse of dominant position as well as for forcing its
patients to make decisions that were essentially unfair. According to CCI, relevant
product market was the “Super Specialty Hospitals” providing maternity services and the
18
Case No. RTPE 16/2009.
19
(2014) CCI 2.
 RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PUNJAB

relevant geographical market was all such hospital within a distance of 0-12 km around

the Hiranandani Hospital. The criticism for such a determination rests on the fact that
super specialty hospitals were differentiated from general hospitals, nursing homes,
clinics, birthing centres, etc. and were put into a separate class limited by area. If the
specialty hospitals were put into an exclusive class, the relevant market should have been
defined keeping in mind all alternatives that could as efficiently have replaced the
services provided by the Hiranandani Hospital thus bringing in all super specialty
hospitals in Mumbai under the purview of the Court's consideration for determining abuse
of dominance. But CCI's approach was lacking on this aspect.

In another landmark matter titled as Belaire Owner's Assn. v. DLF Ltd.20, CCI

gave an order that brought a wave in the competition law jurisprudence. Regarding
relevant geographic market’s issue, CCI communicated the decision of purchasing "high-
end" loft in Gurgaon isn't effortlessly substitutable by a choice of buying comparative flat
in another land area as it targets just a particular set of buyers, as indicated by their ability
to pay.

Using the SSNIP test21, it derived that a buyer intending to purchase a low-end flat

shall not buy a villa or a high-end apartment costing upwards of Rs 2-3 crores for a 5-
10% increase in the price of low-end apartment and vice versa. Consequently, CCI later
pronounced DLF to have violated Sections 4(2)(a)(i) and (ii)22, straightforwardly as well
as by imposition of restrictions on the sale of services that were not fair. CCI discovered
DLF liable of abusing its dominant position in the market and forced with the punishment
of Rs. 630 crores.

Soon enough CCI was faced with many cases that were opposing builders and
involved the matter of delineation of relevant market. Stuck in this imbroglio, CCI has
been very confused in its stance as it became evident from the different benchmarks and
yardsticks that it started adopting.

20
Belaire Owner's Assn. v. DLF Ltd., Case No. 19 of 2010.
21
Small but significant and non-transitory rise in price test.
22
§ 4(2)(a), Competition Act, 2002.
 RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PUNJAB

 In Emaar MGF Land Ltd., In re, although the properties in Gurgaon were at a
price at an amount more than Rs 2 crores the relevant market was determined as
“residential accommodation”. CCI, deviating from its previous position, said that the
apartments in this case come to about Rs 95 lakhs and so the relevant market will be
considered as high-end residential apartments. This stand taken by CCI has led to utter
confusion. On the off chance that cost of lofts is mulled over in deciding the
“Relevant market”, at that point, by what method could CCI in a case decide relevant
market as “residential accommodation, for flats priced over Rs 2 crores” whereas,
according to some cases relevant market can be decided as “high-end residential
apartments for flats priced around Rs 95 lakhs” 23.

DLF case is considered to have brought a settlement to the meaning of

“relevant market”, but this concept whittled down with the order of Emaar MGF. Such
has been the approach of CCI in the cases related to the determination of
relevant market for establishing abuse of dominance. It has clearly not been specific
enough for everyone to know what exactly would constitute a relevant market in a
competition, thus there is a need for the CCI to establish some surety.

“Relevant market” remains an ineffaceable factor to determine the abuse of

dominant position by any enterprise and in this way, every time CCI articulates a
judgment; it is required to translate the idea of “relevant market”. It needs to be
considered and understudied that the concept of relevant market is the foundation of the
competition law and consequently should not be misconstrued and that successful
advances should be taken with the goal that such clashing conclusions do not emerge in
future. The most imperative factor in such assurance is the information depended on and
in this way, the information accumulation and examination needs a prime thought by all
who are engaged with this procedure.

23
Emaar MGF Land Ltd., In re (2014) CCI 78.
 RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PUNJAB

ABUSE OF DOMINANT POSITION

Us and EU have fundamentally contrasting idea and evolution of the concept and
laws of Dominant position and its abuse. It is a fascinating fact that India’s competition
law and cases related to abuse of dominant position is mainly dominated by and
dependent on EU than US. It has become very obvious according to the way that any
notion determining ‘monopolistic trade practices’ under the MRTP Act was much closer
to ‘monopolisation’, which is a part of US law, whereas, notion of ‘abuse of dominance’
as understood under Indian Competition Act is closer to Article 102 of EU text which
illegalises abuse of dominant position. Both the jurisprudences, differ in their nature of
implementation and enforcement of the Anti-Trust laws. Where in US, the enforcement is
Criminal, it is observed to be Administrative in the EU. India has drawn inspiration from
the EU Model.

INDIAN APPROACH

The competition law of the countries focuses on the abuse of dominant position by
the firms in the market. The extent of dominance can be defined as the position of
strength enjoyed by an undertaking that enables it to operate independently of the
competitive pressures in the relevant market and also to affect the market, competitors by
its actions.

Abuse of Dominance provisions typically embodies three common elements24:

a. It is necessary to establish the existence of a dominant position held by a firm or

group of firm in a market, which requires delineation of the ‘relevant market’ in which
such a position is held.

b. It is necessary to identify specific that are harmful to competition.

c. Lastly, the overall effects in the relevant market have to be assessed.

24
Vinod Dhall, Competition Law Today, pg 96.
 RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PUNJAB

DOMINANT POSITION

Article 102 EC states that ‘any abuse by or more undertakings of a dominant position
within the common market or in substantial part of it shall be prohibited as incompatible
with the common market in so far as it may affect trade between member states’.

In United Brands v. Commission25 the ECJ defined ‘dominance’ referring to Article 82

EC as ‘relates to a position of economic strength enjoyed by an undertaking which
enables it to prevent effective competition being maintained on the relevant market by
giving it the power to behave to an appreciable extent independently of its competitors,
customers and ultimately of its consumers’.

Section-18 (1) of the UK Competition Act prohibits any conduct on the part of one or
more undertakings which amounts to the abuse of dominant position in the market if it
affects the trade within United Kingdom.

Under the anti-trust law in the United States, the term corresponding to ‘dominant
position’ is ‘monopoly’. “Monopoly Power” is defined as the power of the concerned
entity to control the prices or to restrict or exclude competition. Section 2 of the Sherman
Act states: "Every person who shall monopolize, or attempt to monopolize, or combine or
conspire with any other person or persons, to monopolize any part of the trade or
commerce among the several States, or with foreign nations, shall be deemed guilty of a
felony”. In United States v. E.L. du Pont de Neumours and Co 351 US 377 (1956), it was
observed that, “Our cases determine that a party has monopoly power if it has, over ‘any
part of the trade or commerce among the several states’ a power of controlling prices or
unreasonably restricting the competition”. In Jefferson Parish Hospital Distt No. 2 v.
Hyde 466 US 2 (1984), citing inter alia United States Steel Corp. v. Fortner Enterprises,
429 U.S. 610, (1977), it was observed that market power is the ability to raise prices
above that those would be charged in a competitive market.

In our Competition Act 2002, Section-4 deals with the prohibition of abuse of dominant
position.
Case 27/76 United Brands Company and United Brands Continental BV v. Commission of the European
25

Countries [1978] ECR 207, at para 65.

 RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PUNJAB

Section 4 Abuse of Dominant Position

[(1) No enterprise or group shall abuse its dominant position.]

(2) There shall be an abuse of dominant position [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 subclause (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 there for 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 [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.
 RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PUNJAB

The Competition Act, 2002 does not prohibit the mere possession of a dominant position,
but only its abuse. Dominance per se is not considered bad under the competition law
rather the abuse of such dominance in considered to be bad and anti-competitive. This is
the difference between the Competition Act and the MRTP Act. In MRTP Act dominance
in itself was considered to be bad but in the Competition Act dominance must be coupled
with the abuse of such dominance.

The Act also lays down number of factors which the commission has to inquire about to
determine whether an enterprise holds a dominant position or not under section 4,
namely:26

· Market share of the enterprise;

· Size and resources of the enterprise · Size and importance of the competitors;
· Economic power of the enterprise including commercial advantages over the
competitors;
· Vertical integration of the enterprise or sale or service network of the enterprise;
· Dependence of the consumers on the enterprise;
· Entry barriers;
· Market structure and size of the market;
· Social obligations and social costs.

Thus, it can be said that the abuse of dominance of an entrepreneur has to be proved
under the Section 4 of the Act even if he holds a dominant position in the relevant market
and it is upon the commission to decide after investigation whether the entrepreneur has
abused his dominant position or not in the relevant market. The focus of the research
paper is to examine the various factors to be present for predatory pricing and how it
constitutes abuse of dominance. Predatory pricing has been defined as per clause (b) of
Section 4 of the Competition Act.

26
Section 19(4), Competition Act, 2002.
 RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PUNJAB

ASSESSMENT OF DOMINANT POSITION

Dominance is defined as the ability of an enterprise to operate independently of market

forces and enables it to affect competitors or consumers or the relevant market in its
favour.27 Under section 19(4) of the Competition Act, 2002, as amended by the
Competition (Amendment) Act, 2007, the CCI is required to assess dominance on the
basis of the following factors: market share; size and resources of the enterprise; market
share of competitors; economic power of the enterprise, including commercial advantages
over competitors; vertical integration of the enterprises or sale or service network of such
enterprises; dependence of consumers on the enterprise; legal monopoly or dominant
position; 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 switching costs; countervailing buyer power; market structure and size of the
market; social obligations and social costs; relative advantage, by way of the contribution
to the economic development, by the dominant enterprise; or any other factor that the CCI
may consider relevant for the inquiry.28

Section 19 of Competition Act, 2002 states the following:

19. Inquiry into certain agreements and dominant position of enterprise. —

(1) The Commission may inquire into any alleged contravention of the provisions
contained in sub-section (1) of section 3 or sub-section (1) of section 4 either on
its own motion or on—

(a) receipt of a complaint, accompanied by such fee as may be determined

by regulations, from any person, consumer or their association or trade
association; or;

(b) a reference made to it by the Central Government or a State

Government or a statutory authority.

27
Explanation (a) of Section 4 (2) of the Competition Act, 2002, as amended by the Competition
(Amendment) Act, 2007.
28
Section 19 (4) of the Competition Act, 2002, as amended by the Competition (Amendment) Act, 2007.
 RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PUNJAB

(2) Without prejudice to the provisions contained in sub-section (1), the powers
and functions of the Commission shall include the powers and functions specified
in sub-sections (3) to (7).

(3) The Commission shall, while determining whether an agreement has an

appreciable adverse effect on competition under section 3, have due regard to all
or any of the following factors, namely: —

(a) creation of barriers to new entrants in the market;

(b) driving existing competitors out of the market;

(c) foreclosure of competition by hindering entry into the market;

(d) accrual of benefits to consumers;

(e) improvements in production or distribution of goods or provision of

services;

(f) promotion of technical, scientific and economic development by means

of production or distribution of goods or provision of services.

(4) 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 the competitors;

(d) economic power of the enterprise including commercial advantages

over competitors;

Thus, there is no concrete market share test, unlike as with other jurisdictions. For
example, in South Africa, more than 45 % market share is considered dominant, in Israel,
 RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PUNJAB

more than 50% market share is considered dominant. For the determination of dominance
under the Competition Act, 2002, as amended by the Competition (Amendment) Act,
2007, even though the market share is treated as an important indicator. The CCI has
considered market share in most cases of abuse of dominance it has reviewed but has also
considered subjective factors such as vertical integration, countervailing buyer power,
economic power of the enterprise, entry barriers, statements in the public domain, etc.
This is evident from two important orders passed by the CCI relating to abuse of
dominance: the MCX Stock Exchange v National Stock Exchange of India Limited29 (the
NSE case) and the DLF case. These cases submit that the determination of dominance is
dependent on the relevant market examination. In DLF Case relevant market included the
high rise buildings in the area of Gurgaon in North India. DLF is found dominant in that
relevant market and thus abuse of dominance was proved.30

US AND EU JURISPRUDENCE FOR ABUSE OF DOMINANCE: A COMPARISON

There is an initiative to integrate the fundamentals of competition law

internationally, EU and US not being special exceptions. But apparently there are some
characteristic problems to accomplish such integration, and few problems can be
attributed to historical context and others are regarding various approaches of
enforcement (civil or criminal)31.

Dominance Test: The margin of “dominance” in US is much higher to the margin present
in Europe. In United States actual monopolisation is considered after 60 percent of market
share whereas, in Europe a market share near to 40 percent can become troublesome. The
approach to test dominance has been mostly on ‘effects based and less on “form-based” in
US. But this approach in Europe the enterprise which enjoys dominant position has a
special responsibility unlike US. Moreover, some concepts like ‘Super Dominance’ is
only present in EU and not US is also being adopted in EU.

29
Case No. 13 / 2009.
30
Belaire Owners Association Inda v DLF Limited, Case No. 20, 2010, CCI.
31
William E. Kovacic, ‘Competition policy in the European Union and the United States: Convergence or
Divergence in the future treatment of dominant firms’, Competition Law International, October 2008, p. 8-
18
 RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PUNJAB

Collective Dominance: “It is important to observe that the idea of collective dominance
has been considerably applied in EU beginning from the decision of Italian Flat Glass32
case (1992) to Airtours case”33. But it has not been favoured much in US as the idea of
‘Unilateral conduct is followed by US and Section 1 of the Sherman Act 34 controls the
collective actions of enterprises that restrains the trade. The Competition Act is also not
alluded to ‘collective dominance’; nevertheless, there’s an expectation of revision of the
Act incorporating this given principle by embedding the phrase ‘singly or jointly’
following the enterprises and groups in Section 4(1) of the Act 35. The essential
components of implementation of the idea of collective dominance are, the enterprises
need to be independent economic identities, these enterprises should have a uniting force
of common economic link and they should have a dominant position because of that
common economic link.

There is a twofold classification of abuse of dominant power, i.e. Exploitative and

Exclusionary abuses. It can also be differentiated as ‘Pricing practices’ and ‘Non-Pricing
Practices’ like denying to deal with a rival, or tying and bundling etc.

Exploitative Abuses

Exploitative Abuse means an abuse where the consumer is directly exploited by

the dominant enterprise to earn monopoly profits whereas, the consumer suffers a direct
loss. One of the examples for the same is Excessive Pricing.

Excessive Pricing

Excessive Pricing, as an abuse, has already been recognized in EU 36. Excessive

pricing as a concept was given by the European Court of Justice in the case of United
Brand which held, “charging a price which is excessive because it has no reasonable

32
IV.29.988 - Italian Flat Glass.
33
Alia Anderson, ‘Collective Dominance in E.C. Merger Control’,
<https://gupea.ub.gu.se/bitstream/2077/2086/1/200155.pdf> accessed August 2, 2014
34
§ 1, The Sherman Anti-Trust Act, 26 Stat. 209, 15 U.S.C. (1880)
35
§ 4(1), Competition Act, 2002.
36
British Leyland Public Limited Company v. Commission, 226/84, ECR 1986 p.03263; EC Comm. Dec.
2001/463/EC and ECJ, 16 July 2009; Der GrünePunkt - Duales System Deutschland GmbH v. Commission,
C-385/07P, ECR 2009 p. I-06155.
 RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PUNJAB

relation to the economic value of the product supplied would be such an abuse”37. Unlike
EU, US does not treat Excessive pricing as a violation under its antitrust law and the same
has also been reiterated in the recent judgement of Verizon v. Trinko38. Lately, “a
convergence is being seen in the excessive pricing laws of both the countries with the
move of EU towards the laws of US”39. It is difficult to determine the offence of
excessive pricing by the agencies as there is a need for a) determination of the
excessiveness of profit margin by comparison between disputed prices and cost of
production, b) determining of unfairness and discriminatory nature of price of the product
in itself or in comparison with other products of relevant market. It is not possible to rely
upon the competition agency as a regulator and controller of price or any strict restrictions
in the practice of excessive pricing as it might hinder with the prospects of innovation.

Exclusionary Abuses

Exclusionary Abuses prohibit the competitors in the relevant market with the aim
of gaining monopoly benefits. Under Exclusionary Abuse there are behaviours which are
capable of weakening the market structure that can hurt the customers in an indirect
manner. These misuses may go from a straightforward tying and bundling to a perplexing
royalty conspire. Exclusionary abuse might be both cost based and non-cost based.

It can be explained as follows: by enforcing a bundling or exclusive dealing

obligation on the purchasers, the firm can induce some customers to buy from it, and
deprive the hypothetical entrant of potential customers. If say the entrant requires a
minimum viable scale to break even, and out of 100 potential customers, the incumbent
captures 41 of them, then the entrant will not be able to reach the minimum viable scale.
Now since entry is deterred, the incumbent can charge monopoly prices from all the
customers. Thus, by charging discriminating prices from some customers, the incumbent
can effectively deter entry and when the entry is deterred, reap monopoly profits. This
argument causes the Chicago school theory to break down as the actions of some
customers have negative externalities on all the consumers.
37
United Brands Co. v. Commission, 1978 ECR 207, ¶ 65 (ECJ).
38
Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, 124 S. Ct. 872 (2004).
39
Patrick Hubert and Marie-Laure Combet, ‘Exploitative Abuse: The End of the Paradox’, Doctrines l
Concurrences N 1-2011 – pp. 44-51.
 RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PUNJAB

It is further noted that, “Even if it is true that the compensation to be paid to a

consumer in order to bribe it into signing an exclusive contract exceeds the per-customer
monopoly profit, this compensation has to be paid to 41 consumers only, while the
monopoly price is charged to all 100 consumers – thus making exclusion profitable. In the
case of bundling, some recent theories, developed in the context of the recent Microsoft
cases, focused on the heterogeneity between present consumers (who get a good deal 27
when purchasing bundles) and future ones (who are harmed by the stifling of
competition).”40 (p. 195-196)

Even though price discrimination facilitates the exclusionary effects of other such
strategies, it also has non-strategic and efficiency enhancing impacts. Thus just the
presence of price discrimination does not imply that it will be anti-competitive. To
minimize the risk of false positives, authorities must not treat price discrimination as a
separate offence but adopt a unified and comprehensive perspective to calculate both the
pro and anti-competitive impacts.

Lastly, and most importantly, the strategic effects of banning price discrimination must
also be considered. In some scenarios, a broad ban on price discrimination can facilitate
the exercise of market power by allowing a monopolist to keep prices high and exclude
several consumers out of the market.

D. Spector, The Strategic uses of Price Discrimination. In S. C. Authority, The Pros and Cons of Price
40

Discrimination, 2005, 195.

 RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PUNJAB

APPROACH FOR DETERMINATION OF DOMINANT POSITION BY CCI

With a specific end goal to comprehend the abuse of dominant position firstly it
requires an understanding of Dominant Position. The Indian Competition Act defines
dominant position which considers if that given enterprise “is in such a position of
economic strength that it can be independent of competitive forces or can influence the
relevant market to support itself.” 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-effect on competition; or any
other factor which the commission may consider relevant for the inquiry.”

The market share, which any specific endeavor enjoys in concerned relevant
market is a standout amongst all other critical elements which are considered for deciding
if that enterprise enjoys dominant position and according to laws of many jurisdictions,
presence of a market share of or over any predefined level offers creates an assumption of
presence of dominant position. Determinants of a particular type of market help
recognizing, how the market player is abusing his dominant power. Beginning with the
market share of that undertaking, once concerned relevant market gets resolved, at that
point it is to be surveyed that what the market share of firm and group is. According to
different nature of sector and the issue being investigated, different factors to measure the
market share are used and each parameter may give different results, which would help
establishing the dominance of an enterprise. Then the determining factor is size and
resources of the enterprise. An enterprise with larger size and superior economic strength
has more probability to enjoy dominant market position. Another dominance establishing
factor is Size and Importance of Competitors- it’s important to establish that what the
market competitors are making out of their businesses in the relevant market. Economic
Power of the enterprise including commercial advantage over competitors is yet another
dominance establishing factor, also superior market position or resources may be a
contributing factor to a dominant market position.
 RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PUNJAB

The Indian Act states under Section 19 (4) that “the Commission may have regard
to certain factors for determining whether an enterprise is in a dominant position
including market share of the enterprise, size and resources of the enterprise; size and
importance of competitors; economic power of the enterprise including commercial
advantages over competitors, vertical integration of the enterprises or sale or service
network of such enterprise; dependence of consumers on such enterprise, 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; 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; countervailing buying power; market structure and size
of market; social obligations and social costs; 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 effects.”

The Abuse of Dominance has been defined by The Indian Act. According to
Section 4 (2) of the Indian Competition Act41,

“There shall be an abuse of dominant position under sub-section (1), if an

enterprise. -

(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

41
§ 4(2), Competition Act, 2002, No. 12 of 2003, Acts of Parliament, 2002 (India).
 RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PUNJAB

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 therefore; 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; 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.”42

The mere existence of dominance is not enough to constitute any violation of the
Competition Act. The abuse of the said dominance in the relevant market is prohibited by
the Act. An enterprise or a group is said to abuse its dominant position if its activities, on
perusal, are found to fit any of the activities listed under §.4(2) of the Competition Act.

Initially, “dominance” and “dominant undertaking” should be suitably

characterized or laid down in the competition law with regard to amount of strength held
by any enterprise that empowers the enterprise in working autonomously of competitive
weights and undertakings in the relevant market and furthermore appreciably affect the
relevant market, competitors and consumers by its actions. The definition ought to
likewise be with regard to the capacity of an undertaking to substantially impact the
market, inclusive of creating barriers for new entrants.

The Competition Act lays down certain conditions that are considered by CCI to
determine whether a firm abused its dominant position to create barriers to entry for an

42
Ibid.
 RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PUNJAB

enterprise. Section 19(4)(h) hence reads; “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;”43

Section 4(2)(e) of the Competition Act lays down that there shall be an abuse of
dominant position if “an enterprise uses its dominant position in one relevant market to
enter into, or protect another relevant market”44. Abuse of dominant position could be
immediate or for example, forcing out of line or biased conditions or costs in sale or
purchase of products and services. It is also inclusive of acts such as predatory pricing,
excessive pricing or denial of market access and leveraging 45. Abuse of dominant position
influences the competitors as well as consumers of the relevant market making the
dominant enterprise immaculate and unmoved.

If Dominant entity abuses its Dominant Position, and the violation of Section 4(1)
is evident, the Commission might conduct an inquiry into the alleged abuse either
independently, i.e. suo moto after receiving any information in certain way and with
certain fees according to the prevalent regulations from any individual, customer or their
union, it can also be referred by Central Government or State Government or a statutory
authority.

It is conspicuous to discuss what factors constitute dominance and so the

Competition Commission of India has mandated the assessment when a market player has
to be apprehended of establishing dominance. Furthermore, for abusing its dominant
position CCI can levy penalty to the extent of 10 per cent of the average of the turnover
for the preceding three financial years. The penalty is higher in case of such abuses by
cartels and penalty can be equivalent to three times of the amount of profits made out of
such agreement by the cartel or ten per cent of the average turnover of the cartel for the
preceding three financial years.

43
§19(4)(h), Competition Act, 2002, No. 12 of 2003, Acts of Parliament, 2002 (India).
44
§ 4(2)(e), Competition Act, 2002, No. 12 of 2003, Acts of Parliament, 2002 (India).
45
S.S. Rana. & Co Advocates., “Abuse of Dominant Position, an Anti-Competitive Practice”
http://www.ssrana.in/Admin/UploadDocument/Article/Abuse-of-dominant-position-anti-competitive-
practice.htm, accessed on 21.06.2018.
RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PUNJAB
 RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PUNJAB

CONCLUSION

It is very clearly noticeable that there has been a shift in the approach followed by
the Indian Legislators and the Competition Commission of India in determining the
relevant market and Abuse of Dominant Position in Anti-Trust Cases. Especially in the
determination of the Dominant Position of an enterprise, the universal approach adopted
by most countries across the world is that of the autonomy of the enterprise. The power
and capacity of an enterprise to act independently of its competitors has been the
yardstick to determine its dominant position.

It is quite evident that the Indian statute follows the EU approach, but there are
very clear distinctions between the two in the definitions laid down by them for the
dominant position of an enterprise. While the Indian Act only talks about an enterprise’s
autonomy and capacity to act independently of its competitors, the definition followed in
EU takes into question the capacity to act independently of its consumers as well.
Furthermore, the explanation (a)(ii) provided in Section 4 46 of the Indian Act talks about
the capacity of an enterprise to affect its consumers and competitors, unlike the EU.

It can be safely assumed that though, the Indian statute is certainly influenced by
the EU approach, it has successfully laid down a much more exhaustive definition for the
Dominant Position of an Enterprise, based on the ‘Behavioral Model’47 of an Enterprise.
Indian act has also shifted from its older approach of taking market share as the only
criterion to establish Dominant Position, which was followed vide the MRTP Act and has
successfully adopted the definition under the EU system to protect the Competition of its
economy in the ever-drastically changing scenarios.

It can be concluded that the determination of dominance is the most complicated

task of the competition agency in any jurisdiction. India has the relevant provisions in
place. According to Section 19 (1) of the Indian Competition Act 2002, the Competition
Commission of India may inquire into any alleged contravention of Section 4 (1) i.e.
abuse of dominant position by an enterprise on its own motion or by receipt of a

§ 4, Competition Act, 2002, No. 12 of 2003, Acts of Parliament, 2002 (India).

46

ICN Unilateral Conduct Working Group, Dominance/Substantial Market Power Analysis Pursuant to
47

Unilateral Conduct Laws, http://www.internationalcompetitionnetwork.org/uploads/library/doc317.pdf.

 RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PUNJAB

complaint, or a reference made to it by the Central Government, State Government or a

statutory Authority. Section 27 of the Act lays down the orders that can be passed by the
Commission upon finding that the action of an enterprise in a dominant position is in
contravention of Section 4.

The determination of dominance has boiled down to interpretation of relevant

product and geographical market. In India the standards are not objective. Thus, India
should create objective criteria to determine dominance, otherwise wrongdoers will get
away by the channel of lack of appreciable adverse effect on competition.

Section 34 further states that the Commission has been empowered to pass an
order for compensation to be recovered from an enterprise due to whose conduct loss or
damage has been suffered. The successful implementation of these provisions by DG and
CCI will ensure India’s success in abuse of dominance cases. India can look into the best
practices in USA, UK, European Union, Australia and other jurisdictions. CCI is very
new. A lot of co-operation is required also from the Sectoral regulators and stakeholders
for successful implementation of the provisions of the Competition Act in India.
 RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PUNJAB

BIBLIOGRAPHY
CASES

1. Belaire Owner's Assn. v. DLF Ltd., Case No. 19 of 2010.................................................13

2. Emaar MGF Land Ltd., In re (2014) CCI 78.....................................................................14
3. ESYS Information Technologies (P) Ltd. v. Intel Corporation. (Intel Inc.), (2014) CCI 4.
............................................................................................................................................11

STATUTES

1. Competition Act, 2002.........................................................................................................8

2. The Sherman Anti-Trust Act, 26 Stat. 209, 15 U.S.C. (1880)...........................................22

ARTICLES

1. Alia Anderson, ‘Collective Dominance in E.C. Merger Control’,....................................22

2. D. Spector, The Strategic uses of Price Discrimination. In S. C. Authority, The Pros and
Cons of Price Discrimination, 2005...................................................................................24
3. ICN Unilateral Conduct Working Group, Dominance/Substantial Market Power Analysis
Pursuant to Unilateral Conduct Laws.................................................................................29
4. Patrick Hubert and Marie-Laure Combet, ‘Exploitative Abuse: The End of the Paradox’,
Doctrines l Concurrences N 1-2011...................................................................................23
5. S.S. Rana. & Co Advocates., “Abuse of Dominant Position, an Anti-Competitive
Practice”.............................................................................................................................28

REPORTS

1. Vinod Dhall, Competition Law Today...............................................................................15

2. William E. Kovacic, ‘Competition policy in the European Union and the United States:
Convergence or Divergence in the future treatment of dominant firms’, Competition Law
International.......................................................................................................................21

BOOKS

1. MAHER M. DABBAH, EC AND UK COMPETITION LAW COMMENTARY, CASES AND

MATERIALS...........................................................................................................................7
 RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PUNJAB

FOREIGN CASES

1. 351 U.S. 377 (1956).............................................................................................................9

2. 371 F.3d 1275.......................................................................................................................9
3. 382 U.S. 172 (86 S.Ct. 347, 15 L.Ed.2d 247)......................................................................9
4. 504 U.S. 451 (1992).............................................................................................................9
5. British Leyland Public Limited Company v. Commission, 226/84, ECR.........................22
6. Case 27/76 United Brands Company and United Brands Continental BV v. Commission
of the European Countries [1978] ECR 207......................................................................16
7. Case 85/76, ECR 461...........................................................................................................8
8. Case C-322/81 ECR 3461 [1983].........................................................................................8
9. Case C-7/97, ECR. I-7791 [1998]........................................................................................8
10. Case No. RTPE 16/2009....................................................................................................12
11. Der GrünePunkt - Duales System Deutschland GmbH v. Commission, C-385/07P, ECR
2009....................................................................................................................................22
12. EC Comm. Dec. 2001/463/EC...........................................................................................22
13. IV.29.988 - Italian Flat Glass.............................................................................................22
14. Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 327 (1961)..............................10
15. Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, 124 S. Ct. 872 (2004).
............................................................................................................................................23