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2018 | OriginalPaper | Chapter

Excessiveness of Prices as an Abuse of Dominant Position: The Case of India

Authors : Augustine Peter, Neha Singh

Published in: Excessive Pricing and Competition Law Enforcement

Publisher: Springer International Publishing

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Abstract

Competition Act, 2002, successor to MRTP Act, 1969, addresses unfair/excessive pricing in three ways: price overcharge through horizontal agreements, RPM coupled with self-administered MRP and, finally, AoD, which is the focus of the chapter. While being careful not to chill the dynamic effects in the market, case-specific factors are scrutinized by the Commission before arriving at excessiveness of price. Cost, profitability, industry average price, prices in similar markets, etc. though important, have not been found to be conclusive of excessive pricing. Unscientific market definition, presence of IPR and high-tech industries may render identification of excessive prices difficult. In regulated sectors, the Commission is cautious in intervening though it possesses the mandate. Peter and Singh also touch upon remedies for addressing the issue in the Indian context. Division of enterprise and compulsory licensing are remedies in extreme cases.

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previous chapter Anti-monopoly Cases on Unfair Pricing in China
Footnotes
1
Bellamy, C and Child, G, ‘European Community Law of Competition,’ Roth, P.M. (eds.), Sweet & Maxwell, 5th Edition (2001).
 
2
Motta, M, ‘Competition Policy Theory and Practice’, Cambridge University Press (2008).
 
3
Motta, M and de Streel, A, ‘Exploitative and Exclusionary Excessive Prices in EU Law’ in Ehlermann, D and Atanasiu, I (eds.), ‘What is an Abuse of a Dominant Position?’ European Competition Law Annual 2003, Oxford, Hart Publishing (2006). Also see Geradin, D, ‘The Necessary Limits to the Control of ‘Excessive’ Prices by Competition Authorities – A View from Europe’, Tilburg University Legal Studies Working Paper (2007). Also see Plessis, L and Blignaut, L, ‘Staying Safe – Dominant Firms’ Pricing Decisions in Industries where High Prices Do not Attract Entry’ presented in Third Annual Competition Commission, Competition Tribunal and Mandela Institute Conference on Competition Law, Economics and Policy in South Africa (2009).
 
4
Investigation in competition cases in the Indian Competition Law cases is carried out by the Office of the Director General (DG), CCI.
 
5
Bellamy, C and Child, G, ‘European Community Law of Competition,’ Roth, P.M. (eds.), Sweet & Maxwell, 5th Edition (2001).
 
6
EU prohibits excessive pricing under Article 102 TFEU, South African Competition Act prohibits excessive pricing under Section 8. Excessive pricing is considered as an abuse under Section 19 Act against Restraints of Competition of Germany. Article 3 of Decree Law 211 of Chilean Competition Law delineates anticompetitive behaviour. The United States follows a noninterventionist approach.
 
7
Case No 40/2011, Competition Commission of India.
 
8
OECD Roundtables: Excessive Prices (2011), DAF/COMP(2011)18, accessed from http://​www.​oecd.​org/​competition/​abuse/​49604207.​pdf, accessed on 29/​01/​2018
 
9
Geradin, D, ‘The Necessary Limits to the Control of ‘Excessive’ Prices by Competition Authorities – A View from Europe’, Tilburg University Legal Studies Working Paper (2007).
 
10
Duque, O. V., ‘Excessive Pricing: A View from Chile’, The University of Oxford Centre for Competition Law and Policy, Working Paper CCLP (L) 41 (2015), accessed from https://​www.​law.​ox.​ac.​uk/​sites/​files/​oxlaw/​cclpl41.​pdf, accessed on 29/01/2018. Also see Whish and Bailey, ‘Competition Law’, Oxford University Press, (2015). Also see Evans, D. S. and Padilla, A. J., ‘Excessive Prices: Using Economics to Define Administrable Legal Rules’, CEMFI Working Paper No. 0416 (2004), accessed from http://​www.​cemfi.​es/​ftp/​wp/​0416.​pdf, accessed on 29/01/2018.
 
11
Motta, M and de Streel, A, ‘Excessive Pricing in Competition Law: Never Say Never?’ In ‘The Pros and Cons of High Prices’, Konkurrensverket Swedish Competition Authority (2007), accessed from http://​www.​konkurrensverket​.​se/​globalassets/​english/​research/​the-pros-and-cons-of-high-prices-14mb.​pdf, accessed on 29/01/2018. Also see Fletcher, A and Jardine, A, ‘Towards an Appropriate Policy for Excessive Pricing’, in Ehlermann, C. D. and Marquis, M (eds.), ‘European Competition Law Annual (2007): A Reformed Approach to Article 82 EC’, Hart Publishing (2008), accessed from https://​www.​eui.​eu/​Documents/​RSCAS/​Research/​Competition/​2007ws/​200709-COMPed-Fletcher-Jardine.​pdf, accessed on 29/01/2018. Also see O’Donoghue, R and Padilla, J, ‘The Law and Economics of Article 82 EC’, Hart Publishing (2006).
 
12
Supreme Court of India is the Apex Court.
 
13
1987 AIR 1802, 10 April, 1987.
 
14
AlaudDin Khalji (1296–1316) was the second and the most powerful ruler of the Khalji dynasty that ruled the Delhi Sultanate in the Indian subcontinent. See Alauddin Khalji. Wikipedia https://​en.​wikipedia.​org/​wiki/​Alauddin_​Khalji
 
15
During the reign of Alauddin Khilji, Diwan-i-risalat was renamed or replaced by the department called Diwan-i-riyasat whose primary function was to implement the economic regulations issued by the Sultan and control the markets and prices.
 
16
Shahana-i-mandi were officers appointed as controller of grains. The office of Shahana-i-Mandi controlled the grain market and prepared a chart mentioning the prices of various essential commodities. The merchants of Delhi, who wanted to sale those commodities at the government fixed prices, were required to obtain license from the office of Shahana-i-Mandi. The private stockpiling of sustenance was banned. For controlling the food prices, Alauddin Khilji tried to control not only the supply of food grains from the villages, and its transportation to the city by the grain merchants (Karwanis or banjaras) but also its proper distribution to the citizens. A distributing system was introduced and there was a system of quality control. However, the method of quality control could not work much after the death of Alauddin Khilji.
 
17
Singh, V. V. and Mitra, S, ‘Regulatory Management and Reform in India’, Background Paper for OECD, CUTS International, accessed from https://​www.​oecd.​org/​gov/​regulatory-policy/​44925979.​pdf, accessed on 29/01/2018.
 
18
Central Electricity Regulatory Commission (CERC) at the central level and State Electricity Regulatory Commissions (SERC) at state levels constituted under the Electricity Act, 2003. See http://​cercind.​gov.​in/​
 
19
Petroleum and Natural Gas Regulatory Board (PNGRB) constituted under the Petroleum and Natural Gas Regulatory Board Act, 2006. See http://​www.​pngrb.​gov.​in/​
 
20
Telecommunications Regulatory Authority of India (TRAI) and Telecom Dispute Settlement and Appellate Tribunal (TDSAT) constituted under the Telecommunications Regulatory Authority of India Act, 1997. See http://​www.​trai.​gov.​in/​ and http://​www.​tdsat.​gov.​in/​Delhi/​Delhi.​php
 
21
Insurance Regulatory and Development Authority of India (IRDA) constituted under the Insurance Regulatory and Development Authority Act, 1999. See https://​www.​irdai.​gov.​in/​Defaulthome.​aspx?​page=​H1
 
22
Airport Economic Regulatory Authority of India (AERA) constituted under the Airport Economic Regulatory Authority of India Act, 2008. See http://​aera.​gov.​in/​content/​
 
23
Directorate General of Civil Aviation (DGCA). See http://​dgca.​nic.​in/​
 
24
In April 2002, India abolished the Administrative Pricing Mechanism (APM) controlling the domestic price of petroleum products in India under which product prices were directly administered by the Central Government based on cost of operating capital plus formula. The new regime brought to the forefront the freedom of oil marketing companies to set retail product prices based on an import parity pricing formula, under the supervision of the petroleum sector regulator. The domestic refining and retail sector was also opened to private sector firms. Also see Petroleum Prices, Taxation and Subsidies in India, International Energy Agency, June 2009, accessed from https://​www.​iea.​org/​publications/​freepublications​/​publication/​petroleum_​pricing.​pdf, accessed on 29/01/2018.
 
25
Inserted by Competition (Amendment) Act, 2007.
 
26
The Real Estate (Regulation and Development) Act, 2016, is a new legislation and came into force on 01/05/2017.
 
27
The Competition Commission of India.
 
28
Section 36A of the Monopolies and Restrictive Trade Practices Act, 1969, defined an ‘unfair trade practice’ as a trade practice, which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any services adopts any unfair method or unfair or deceptive practice including oral, written or visible misrepresentations regarding standard, quality, status, condition usefulness and price of goods or services; false warranty, guarantee or promise regarding goods or services; disparaging of goods and services of another person; and false advertising and misrepresenting with regard to the gifts, prizes and offers in sale, etc.
 
29
Section 66(4) of the Competition Act, 2002.
 
30
Section 4 of the Competition Act, 2002: (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 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 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. Also see Dugar, S. M., ‘Guide to Competition Law’, 6th Edition, Lexis Nexis (2016).
 
31
OECD Roundtables: Excessive Prices (2011), DAF/COMP(2011)18, accessed from http://​www.​oecd.​org/​competition/​abuse/​49604207.​pdf, accessed on 29/01/2018.
 
32
Case No 13/2009, Competition Commission of India.
 
33
Case No 03/2011, Competition Commission of India.
 
34
Quoted in ‘Competition Issues in Aftermarkets – Note from India’, OECD, Directorate for Financial and Enterprise Affairs Competition Committee (2017), accessed from https://​one.​oecd.​org/​document/​DAF/​COMP/​WD(2017)11/​en/​pdf, accessed on 29/01/2018.
 
35
Case No 13/2009, Competition Commission of India.
 
36
Under Section 27 of the Act, NSE was directed to cease and desist from unfair pricing, exclusionary conduct and unfairly using its dominant position in other markets to protect the relevant currency derivative (C.D.) market.
 
37
Average total cost.
 
38
Average variable cost.
 
39
Long run average incremental cost.
 
40
Average avoidable cost.
 
41
Case No 62/2016, Competition Commission of India.
 
42
Case No RTPE 31/2008, initiated under the MRTP Act, 1969. Order passed by the Competition Commission of India.
 
43
The opposite party under Competition law enforcement in India is the party against whom the alleged matter is brought by the informant. Under the procedure followed by the Commission, the informant brings the case before the Commission, except when it is a suo moto case, Reference Case or a Lesser Penalty application. Opposite parties are the enterprises or persons who have been made party in the case as defenders.
 
44
Case No 29/2010, Competition Commission of India.
 
45
Suo Moto 02/2011, Competition Commission of India.
 
46
Reduced by the Competition Appellate Tribunal (now National Company Law Appellate Tribunal) and the Supreme Court to relevant turnover instead of total turnover while upholding the contravention.
 
47
Case 77/2015, Competition Commission of India.
 
48
MRP differs from the system of recommended retail price wherein the price calculated by the manufacturers is only a recommendation as opposed to being enforceable by law.
 
49
Case No 48/2011, Competition Commission of India.
 
50
Case no 09/2015, Competition Commission of India.
 
51
Case No 07/2016, Competition Commission of India.
 
52
Case 68/2013, Competition Commission of India.
 
53
Case No 61/2014, Competition Commission of India.
 
54
Case No 36 and 82/2014, Competition Commission of India.
 
55
Dominant position is established with reference to explanation (a) to Section 4 and Section 19(4) of the Competition Act, 2002.
 
56
Cases included till 31/12/2017. The Commission found violation in Kiratpur Sahib Truck Owners and Honda Siel.
 
57
Relevant Market is defined under section 2(r) as the market which may be determined by the commission with reference to the relevant product market or the relevant geographic market or with reference to both the markets. Relevant Geographic Market is defined under section 2(s) as 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. Relevant Product Market is defined under section 2(t) as 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.
 
58
Section 19(4) of the Competition Act, 2002, reads as: 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; (e) vertical integration of the enterprises or sale or service network of such enterprises; (f) dependence of consumers on the enterprise; (g) monopoly or dominant position whether acquired as a result of any statute or by virtue of being a government company or a public sector undertaking or otherwise; (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; (I) 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.
 
59
Case No 68/2012, Competition Commission of India.
 
60
Case No 51/2013, Competition Commission of India.
 
61
Case No 59/2015, Competition Commission of India.
 
62
Case No 98/2015, Competition Commission of India.
 
63
Case No RTPE 05/2006 & Interim Application No 05/2006, Monopolies and Restrictive Trade Practices Commission.
 
64
Monsanto was charging trait value of Rs 1600/- to Rs 1800/- per packet of seeds of 450 grams in the State of Andhra Pradesh. During the pendency of the petition before the MRTPC, Monsanto reduced charging of the trait value to Rs 1250/- per 450 grams.
 
65
Reference Case No. 2 of 2015 & Case No. 107 of 2015, Competition Commission of India.
 
66
S.O. 686 (E) dated 08/03/2016.
 
67
Case No 70/2011, Competition Commission of India.
 
68
Case No 43/2013, Competition Commission of India.
 
69
Case No 03/ 2011, Competition Commission of India.
 
70
Case No 93/2016, Competition Commission of India.
 
71
Case 44/2017, Competition Commission of India.
 
72
Case No 35/2011, Competition Commission of India.
 
73
Case No 28/2010, Competition Commission of India.
 
74
Case No 14/2011 & Case No 60/2011, Competition Commission of India.
 
75
Case No. 103/2016, Competition Commission of India.
 
76
Rao, P. S, ‘Law of Mines and Minerals’, Vol. 2, 18th Edn., 2012, Asia Law House. Also see Bhatnagar, M, ‘Competition and Regulatory Issues in Coal Sector in India’, CIRC Working Paper 11, CUTS, Institute for Regulation & Competition (2015), accessed from http://​www.​circ.​in/​pdf/​Competition-and-Regulatory-Issues-Coal-Sector-India.​pdf, accessed on 29/01/2018.
 
77
The Coking Coal Mines (Emergency Provisions) Act, 1971 and the Coal Mines (Taking Over of Management) Act, 1973. Also see Bhatnagar, M, ‘Competition and Regulatory Issues in Coal Sector in India’, CIRC Working Paper 11, CUTS, Institute for Regulation & Competition (2015), accessed from http://​www.​circ.​in/​pdf/​Competition-and-Regulatory-Issues-Coal-Sector-India.​pdf, accessed on 29/01/2018.
 
78
The Coking Coal Mines (Nationalisation) Act, 1972 and The Coal Mines (Nationalisation) Act, 1973. Also see Bhatnagar, M, ‘Competition and Regulatory Issues in Coal Sector in India’, CIRC Working Paper 11, CUTS, Institute for Regulation & Competition (2015), accessed from http://​www.​circ.​in/​pdf/​Competition-and-Regulatory-Issues-Coal-Sector-India.​pdf, accessed on 29/01/2018.
 
79
https://www.coalindia.in/, accessed on 03/02/2018.
 
80
Case Nos. 05, 07, 37 & 44 of 2013, Competition Commission of India.
 
81
Case No 03, 11 & 59/2012, Competition Commission of India.
 
82
Case No 12/2012, Competition Commission of India.
 
83
Case No 13/2012, Competition Commission of India.
 
84
Case No 69/2012, Competition Commission of India.
 
85
Case No 15/2013, Competition Commission of India.
 
86
Case No RTPE 16/2009 & Case No UPTE 99/2009 initiated under the MRTP Act, 1969. Order passed by the Competition Commission of India.
 
87
Dissenting per Prasad R, Hindustan Coca-Cola enjoys complete dominance. Since other competitors are not allowed inside Inox, competition is eliminated. Charging exorbitantly higher MRP, Hindustan Coca-Cola and Inox have abused its position dominance in the relevant market.
 
88
Case No 87/2013, Competition Commission of India.
 
89
Case No 90/2014, Competition Commission of India.
 
90
Case No 42/2016, Competition Commission of India.
 
91
Case No 34/2016, Competition Commission of India.
 
92
The primary mandate of the CERC is to regulate the tariff of generating companies owned or controlled by the Central Government, to regulate the inter-State transmission of electricity, to determine tariff for inter-State transmission of electricity and to issue licenses to persons to function as transmission Licensee and electricity trader with respect to their inter-State operations. Under Section 66 of the Electricity Act, CERC has been mandated to take steps for promoting the development of market (including trading) in power taking into account the National Electricity Policy. See http://​cercind.​gov.​in/​
 
93
Case No 06/2009, Competition Commission of India.
 
94
Case No UTPE 45/2005 & Case No RTPE 19/2008 initiated under the MRTP Act, 1969. Order passed by the Competition Commission of India.
 
95
Case No 65/2011, Competition Commission of India.
 
96
Case No 12/2014, Competition Commission of India.
 
97
Case No 01/2016, Competition Commission of India.
 
98
Case No 40/2011, Competition Commission of India.
 
99
Case No 36/2012, Competition Commission of India.
 
100
Case No 78/2013, Competition Commission of India.
 
101
Case No 22/2010, Competition Commission of India.
 
102
Case No 51/2011, Competition Commission of India.
 
103
One of the competitors of Saint Gobain, the management and operations of which were taken over by Saint Gobain.
 
104
Case No 16/2010, Competition Commission of India.
 
105
Dissenting Prasad R, the relevant market is the services for dissemination of STM knowledge in India. OP is the second largest publisher of STM and journals in the world. Journals published by the OP have increased substantially over a short period of time, in some cases up to 400%, and hence a violation of Section 4(2) (a) (ii) is made out.
 
106
Case No 48/2015, Competition Commission of India.
 
107
PNGRB has been mandated to regulate the refining, processing, storage, transportation, distribution, marketing and sale of petroleum, petroleum products and natural gas excluding production of crude oil and natural gas so as and to ensure uninterrupted and adequate supply of petroleum, petroleum products and natural gas in all parts of the country. See http://​www.​pngrb.​gov.​in/​
 
108
Case Nos 50/2011 & 02/2011, Competition Commission of India.
 
109
Case No 71/2012, Competition Commission of India.
 
110
Case No 63/2014, Competition Commission of India.
 
111
Established on 29/08/1997.
 
112
Pharmaceutical industry in India was not well developed until the twentieth century, and the drug demand was catered to by importing drugs. Post First World War, the demand for drugs had increased tremendously which led to creeping in of cheap and substandard drugs into the market. To control cheap drugs, the Government passed the Poisons Act 1919 to regulate possession of substance or sale of substances as specified as poison. This was followed by various other legislations like the Drugs and Cosmetics Act, 1940, Pharmacy Act, 1948, Indian Patent Act, 1970 etc.
 
114
Case No 68/2016, Competition Commission of India.
 
115
Case Nos 64/2010, 12/2011 & 02/2011, Competition Commission of India.
 
116
Case No 19/2010.
 
117
Case No 18/2011, Competition Commission of India.
 
118
Case No 49/2011, Competition Commission of India.
 
119
Case No 10/2012, Competition Commission of India.
 
120
Case No 28/2012, Competition Commission of India.
 
121
Case No 43/2012, Competition Commission of India.
 
122
Case No 65/2012, Competition Commission of India.
 
123
Case No 03/2013, Competition Commission of India.
 
124
Case No 25/2013, Competition Commission of India.
 
125
Case No 77/2013, Competition Commission of India.
 
126
Case No 80/2013, Competition Commission of India.
 
127
Case No 102/2013, Competition Commission of India.
 
128
Case No 103/2013, Competition Commission of India.
 
129
Case No 05/2014, Competition Commission of India.
 
130
Case No 11/2014, Competition Commission of India.
 
131
Case No 27/2014, Competition Commission of India.
 
132
Case No 40/2014, Competition Commission of India.
 
133
Case No 69/2014, Competition Commission of India.
 
134
Case No 16/2015, Competition Commission of India.
 
135
Case No 5 & 6/2016, Competition Commission of India.
 
136
Case No 14/2016, Competition Commission of India.
 
137
Case No 37/2017, Competition Commission of India.
 
138
Case 78/2016, Competition Commission of India.
 
139
Case No 86/2016, Competition Commission of India.
 
140
Case No 56/2012, Competition Commission of India.
 
141
Case No 57/2012, Competition Commission of India.
 
142
Case No 72/2012, Competition Commission of India.
 
143
Case No 100/2014, Competition Commission of India.
 
144
Case 50/2013, Competition Commission of India.
 
145
Case 76/2013, Competition Commission of India.
 
146
Case No 04/2015, Competition Commission of India.
 
147
FRAND commitment is a voluntary agreement between the standard-setting organization and the holder of standard essential patents.
 
148
Case No 04/2016, Competition Commission of India.
 
149
Case No 48/2012, Competition Commission of India.
 
150
Case No 40/2011, Competition Commission of India.
 
151
United Brands Co. v Commission, Case 27/76, [1978] ECR 207. See Dabbah, M.M, ‘EC and UK Competition Law: Commentary, Cases and Materials’, Cambridge University Press, (2004). Also see Bellamy, C and Child, G, ‘European Community Law of Competition,’ Roth, P. M. (eds), Sweet &Maxwell, 5th Edition (2001).
 
152
OECD Roundtables: Excessive Prices (2011), DAF/COMP(2011)18, accessed from http://​www.​oecd.​org/​competition/​abuse/​49604207.​pdf, accessed on 29/01/2018.
 
153
Case No 78/2016, Competition Commission of India.
 
154
Case No 86/2016, Competition Commission of India.
 
155
Section 53N provides for awarding compensation where a person may make an application to the Appellate Tribunal to adjudicate on claim for compensation that may arise from the findings of the Commission or the orders of the Appellate Tribunal.
 
156
Case No 35/2011, Competition Commission of India.
 
157
Case No 28/2010, Competition Commission of India.
 
158
Case Nos 14/2011 & 60/2011, Competition Commission of India.
 
159
Case No 103/2016, Competition Commission of India.
 
160
Case No 04/2016, Competition Commission of India.
 
161
Case No 36/2012, Competition Commission of India.
 
162
Case No 90/2014, Competition Commission of India.
 
163
Case No 13/2012, Competition Commission of India.
 
164
Case No 12/2014, Competition Commission of India.
 
165
Case No 01/2016, Competition Commission of India.
 
166
Case No 69/2012, Competition Commission of India.
 
167
Case No 15/2013, Competition Commission of India.
 
168
Case No 682012, Competition Commission of India.
 
169
Case No 70/2011, Competition Commission of India.
 
170
Case No 78/2013, Competition Commission of India.
 
171
Case No 06/2009, Competition Commission of India.
 
172
Case No 93/2016, Competition Commission of India.
 
173
Case No 44/2017, Competition Commission of India.
 
174
Case No 72/2012, Competition Commission of India.
 
175
Case No 78/2016, Competition Commission of India.
 
176
Case No 86/2016, Competition Commission of India.
 
177
Case No 03/2011, Competition Commission of India.
 
178
Case No 40/2011, Competition Commission of India.
 
179
Case No 50/2011 and 02/2011, Competition Commission of India.
 
180
Case No 43/2013, Competition Commission of India.
 
181
Case No RTPE 02/2006 and Interim Application No 05/2006, Monopolies and Restrictive Trade Practices Commission.
 
182
Case No 03/2011, Competition Commission of India.
 
183
Case No 16/2010, Competition Commission of India.
 
184
Case No 87/2013, Competition Commission of India.
 
185
Case No RTPE 16/2009 & UTPE 99/2009, Case filed under MRTP Act. Order passed by Competition Commission of India.
 
186
Case No 14/2011 & 60/2011, Competition Commission of India.
 
187
Competition Issues in Aftermarkets – Note from India, OECD, Directorate for Financial and Enterprise Affairs Competition Committee, (2017), accessed from https://​one.​oecd.​org/​document/​DAF/​COMP/​WD(2017)11/​en/​pdf, accessed on 29/01/2018.
 
188
Case No 03/2011, Competition Commission of India.
 
189
Case No 04/2015, Case No 50/2013 and 76/2013, Competition Commission of India.
 
190
Case No 68/2016, Competition Commission of India.
 
191
Case No RTPE 05/2006 and Interim Application No 05/2006, Monopolies and Restrictive Trade Practices Commission.
 
192
Section 27, Competition Act, 2002 – Where after inquiry the Commission finds that any agreement referred to in section 3 or action of an enterprise in a dominant position, is in contravention of section 3 or section 4, as the case may be, it may pass all or any of the following orders, namely:— (a) direct any enterprise or association of enterprises or person or association of persons, as the case may be, involved in such agreement, or abuse of dominant position, to discontinue and not to re-enter such agreement or discontinue such abuse of dominant position, as the case may be; (b) impose such penalty, as it may deem fit which shall be not more than ten percent. of the average of the turnover for the last three preceding financial years, upon each of such person or enterprises which are parties to such agreements or abuse: Provided that in case any agreement referred to in section 3 has been entered into by a cartel, the Commission may impose upon each producer, seller, distributor, trader or service provider included in that cartel, a penalty of up to three times of its profit for each year of the continuance of such agreement or ten percent. of its turnover for each year of the continuance of such agreement, whichever is higher; (c) [Omitted by Competition (Amendment) Act, 2007] (d); direct that the agreements shall stand modified to the extent and in the manner as may be specified in the order by the Commission; (e) direct the enterprises concerned to abide by such other orders as the Commission may pass and comply with the directions, including payment of costs, if any; (f) [Omitted by Competition (Amendment) Act, 2007]; (g) pass such other [order or issue such directions] as it may deem fit.
 
193
Section 28, Competition Act, 2002 – Division of enterprise enjoying dominant position – 28 (1) The Commission may, notwithstanding anything contained in any other law for the time being in force, by order in writing, direct division of an enterprise enjoying dominant position to ensure that such enterprise does not abuse its dominant position. (2) In particular, and without prejudice to the generality of the foregoing powers, the order referred to in sub-section (1) may provide for all or any of the following matters, namely:— (a) the transfer or vesting of property, rights, liabilities or obligations; (b) the adjustment of contracts either by discharge or reduction of any liability or obligation or otherwise; (c) the creation, allotment, surrender or cancellation of any shares, stocks or securities; (d) [Omitted by Competition (Amendment) Act, 2007]; (e) the formation or winding up of an enterprise or the amendment of the memorandum of association or articles of association or any other instruments regulating the business of any enterprise; (f) the extent to which, and the circumstances in which, provisions of the order affecting an enterprise may be altered by the enterprise and the registration thereof; (g) any other matter which may be necessary to give effect to the division of the enterprise. (3) Notwithstanding anything contained in any other law for the time being in force or in any contract or in any memorandum or articles of association, an officer of a company who ceases to hold office as such in consequence of the division of an enterprise shall not be entitled to claim any compensation for such cesser.
 
194
Section 27(a), Competition Act, 2002.
 
195
Section 27 (b), Competition Act, 2002.
 
196
Section 27 (d), Competition Act, 2002.
 
197
Section 27 (e), Competition Act, 2002.
 
198
Section 27(g), Competition Act, 2002.
 
199
OECD Roundtables: Excessive Prices (2011), DAF/COMP(2011)18, accessed from http://​www.​oecd.​org/​competition/​abuse/​49604207.​pdf, accessed on 29/01/2018.
 
200
Case No 03/2011, Competition Commission of India.
 
201
Case No 43/2013, Competition Commission of India.
 
202
Toyota Kirloskar Motors v Competition Commission of India and Ors, Appeal No 60/2014 dated 09/12/2016 of Competition Appellate Tribunal (Now National Company Law Appellate Tribunal). COMPAT upheld the order of the Commission reducing the penalty from 2% of the average turnover (total turnover) to 2% of the average annual turnover of spare parts in the aftermarket (relevant turnover).
 
203
Case No 03/2011, Competition Commission of India.
 
204
Judgement dated 30/03/2016 of the Delhi High Court in W.P.(C) 464/2014 & CM Nos.911/2014 & 915/2014, Telefonaktiebolaget LM Ericsson (Publ) v. Competition Commission of India and Anr.
 
205
Judgement dated 24/01/2018 of the Hon’ble Supreme Court in CA No 7215/2014, Competition Commission of India v M/s Fast Way Transmission Pvt Ltd & Ors.
 
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Metadata
Title
Excessiveness of Prices as an Abuse of Dominant Position: The Case of India
Authors
Augustine Peter
Neha Singh
Copyright Year
2018
Book
Excessive Pricing and Competition Law Enforcement

Print ISBN: 978-3-319-92830-2

Electronic ISBN: 978-3-319-92831-9

Copyright Year: 2018

DOI
https://doi.org/10.1007/978-3-319-92831-9_10