The Locus Standi Conundrum: NCLAT, Competition Commission, and the Supreme Court

By Devashish Srivastava, Student at National Law University Odisha

The locus to approach or file an information before the Competition Commission of India (CCI) has been unclear in recent times. It was complicated further by the National Company Law Appellate Tribunal’s (NCLAT) judgment in the matter of Samir Agrawal vs. CCI (Samir Agarwal case). Following the NCLAT’s judgment, the CCI got involved and changed the judicial stance to reflect the fundamental objective of the Competition Act, 2002 (the Act) in Harshita Chawla vs WhatsApp and Facebook (WhatsApp Case). Soon after CCI’s judgment in the WhatsApp Case, the Supreme Court settled the issue vide its order in the Samir Agrawal case in an appeal against the NCLAT’s order. The current article is a chronological study which seeks to analyse the aforesaid judgments passed by the judicial authorities.

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In Search Of “Control”- A Competition Law Perspective

By Subramanya .V. Mysore, LL.M. Candidate at Jindal Global Law School

The term “control” is defined under explanation to Section 5 of the Competition Act, 2002 (the Act) as “control includes controlling the affairs or management by one or more enterprises, either jointly or singly, over another group or enterprise….” In order to assess control, firstly, a proposed merger shall meet the thresholds of asset and turnover set forth under Section 5.  Thereafter, the concerned party shall notify the Competition Commission of India (the CCI) under Section 6 to assess whether or not such mergers result in an appreciable adverse effect on competition in India. However, the notification requirement can be waived if the concerned deal falls within list of exemptions provided under items 1 to 10 of Schedule I to the Competition Commission of India (Procedure in Regard to the Transaction of Business Relating to Combinations) Regulations, 2011 (Combination Regulations).

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Samir Agarwal vs CCI – NCLAT’s Erroneous Approach Towards Locus Standi

Anurag Mohan Bhatnagar and Amiya Upadhyay, National Law University Odisha

Introduction

Recently, the National Company Law Appellate Tribunal (NCLAT) passed a decision wherein it ruled that the locus standi to approach the Competition Commission of India (CCI) shall only be restricted to the person who has suffered harm because of anti-competitive practices in the market. This has created a major turmoil in the competition law regime since the decision is in disregard of the intent of the legislature and settled principles of interpretation. Axiomatically, the term “any person” as under Section 19(1)(a) of the Competition Act, 2002 (Act) acts as a gate through which multiple entities can reach the commission with complaints of anti-competitive practices. The provision also ensures healthy competition in the market of India. However, it does not have a mechanism to filter-out ill-motivated and frivolous complaints reaching CCI.

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Understanding ‘Network Effect’

Abhishek Tripathy, 4th year law student, Nirma University

Network effect can be defined as a consumer’s effect from using a good or service on the total perceived value of that product or service for others. The number of users/consumers who use a product or service is directly proportional to the value of the network. Let’s take the example of an online messenger, suppose X no. of people join the messenger, it will attract Y no. of people who are not on the platform but want to access X through the services provided by the messenger. The e-commerce scenario in India is majorly a two-sided market, wherein there is a user network, a seller network and they both are connected through an intermediary.

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