Team Code: 037

THE THIRTEENTH NLU ANTITRUST LAW MOOT COURT COMPETITION, 2022

Before

THE HONORABLE SUPREME COURT OF NIDAVELLIR

Special Leave Petition

PETITIONS FILED UNDER SECTION 53T, OF THE COMPETITION ACT, 2002

S.L.P. NO. 16 of 2022

EITRI…………………………………………………..………………………………..APPELLANT

V.

NFTC…………….…………………………………...………………………..……..RESPONDENT

CLUBBED WITH

S.L.P. NO. 08 OF 2022(UNDER §53T OF THE COMPETITION ACT, 2002)

ODIN…………………………………………………..……………………...…..APPELLANT NO.
1

HELA…………………………………………………..……………………...…..APPELLANT
NO.2

FURY…………………………………………………..……………………...…..APPELLANT
NO.3

V.

NFTC…………….…………………………………...………………………..……..RESPONDENT

i
 MEMORANDUM FILED ON BEHALF OF APPEALLANTS

TABLE OF CONTENTS

INDEX OF AUTHORITIES..........................................................................................................iii

STATUTES:..................................................................................................................................iii

LIST OF ABBREVIATIONS........................................................................................................iv

Statement of Jurisdiction................................................................................................................vi

Statement of Facts.........................................................................................................................vii

SUMMARY OF ARGUEMENTS.................................................................................................ix

a. Whether NFTC’s jurisdiction supersedes that of the TVA and the NFTC erred by passing
its final order when the matter was sub-judice before the TVA?...............................................ix

b. Whether Eitri is in violation of section 3(4)(c) of the Act?.................................................ix

c. Whether Eitri is in violation of section 4 of the Act?..........................................................ix

d. Whether Odin, Hela and Fury violated section 3 of the Act?..............................................ix

ARGUMENTS ADVANCE............................................................................................................1

a. Whether NFTC’s jurisdiction supersedes that of the TVA and the NFTC erred by passing
its final order when the matter was sub-judice before the TVA?................................................1

b. Whether Eitri is in violation of section 3(4)(c) of the Act?..................................................3

c. Whether Eitri is in violation of section 4 of the Act?...........................................................7

d. Whether Odin, Hela and Fury violated section 3 of the Act?...............................................9

Prayer.............................................................................................................................................12

ii
 INDEX OF AUTHORITIES

STATUTES:

1. Competition Act, 2002.

2. Telecom Regulatory Authority of India Act, 1997.

CASES:

CASE NAME AND CITATION PG. NO.

1. ADIDAS LTD. V. FOOTBALL ASSOCIATION OF IRELAND, CASE NO. 11
421 OF 12/9/95
2. Association of Third-Party Administrators v General Insurers’ 4
Public Sector Insurance and Ors (Case No. 107/ 2013)
3. Auto parts case (Shamsher Kataria v Honda Siel Cars India Ltd 5
and others, (Case No. 03/2011)
4. AUTOMOBILES DEALERS ASSOCIATION, HATHRAS V. GLOBAL 9
AUTOMOBILES LTD, CASE NO. 33/2011
5. Board of Trade of City of Chicago v. US (1918) 246 US 231 7
6. CONSUMER ONLINE FOUNDATION V. TATA SKY, CASE NO. 10
02/2009
7. CONTINENTAL T.V. V. GTE SYLVANIA, 433 U.S. 36 (1977) 9
8. DELIMITIS V. HENNINGER BRAU AG, 1991 ECR I-935 9

9. Dona v. Mantero, Case 13/76, ¶12 (ECJ). 8

10. Excel Crop Care Ltd. vs Competition Commission Of India on 8 2, 3
May, 2017
11. EXPEDIA INC. V. AUTORITÉ DE LA CONCURRENCE, CASE C-226/11 11
12. HT MEDIA LIMITED V. SUPER CASSETTES INDUSTRIES LIMITED, 10
CASE NO. 40/2011
13. Indian Glycols Ltd v Indian Sugar Mills Association (Case No. 4

iii
 21/2013)
14. Lehtonen v. Fédération Royale Belge des Sociétés de Basket-ball 8
ASBL (FRBSB), Case C-176/96, ¶32
15. Mr Vijay Gopal v Inox Leisure Ltd & Ors (Case No. 29/2018) 5
16. NUNGESSER V. COMMISSION 1982 ECR 2015 11
17. Nuziveedu Seeds Ltd vs Mahyco Monsanto Biotech (India) ... on 2
23 July, 2020
18. Prabhat Agri Biotech Ltd vs Mahyco Monsanto Biotech (India) ... 1
on 23 July, 2020
19. SONAM SHARMA V. APPLE INC., CASE NO. 24 OF 2011, ¶20 (CCI) 5, 10
20. Tata Engineering and Locomotive Co Ltd (Telco) v. The 9
Registrar of Restrictive Trade Agreement, 1977 AIR 973
21. TECHNIQUE MINIERE V. MASCHINENDAU ULM, 1966 ECR 337 11
22. U.S. V. MICROSOFT, 253 F.3D 34 10
23. Walrave and Koch v. Union Cycliste Internationale, [1974] ECR 8
1405, ¶8-9 (ECJ).

OTHER AUTHORITIES:

1. A. Roy, COMPETITION LAW IN INDIA (2nd edn., 2014)

2. F. Wijckmans, and F. Tuytschaever, VERTICAL AGREEMENTS IN EU COMPETITION LAW (2nd

edn., 2011).

3. G. Monti, EC COMPETITION LAW (1st edn., 2007).

4. R Posner, ANTITRUST LAW (2nd edn., 2001).....................................................................29

5. R. Whish and D. Bailey, COMPETITION LAW (8th edn., 2015)....................................22, 26

iv
 LIST OF ABBREVIATIONS
Abbreviations Expansion
AAEC Appreciable Adverse Effect on Competition
Art. Article
CCI Competition Commission of India
Co. Company
GoN Government of Nidavellir
DG Director General
EC European Commission
Eitri Eitri Manufacturers Limited
EU European Union
NFTC Nidavellir Federal Trade Commission
CSC Car Smart Chip
Ltd. Limited
UHF Ultra High Frequency
Ultron Ultron Telecom Limited
Pvt. Private
r/w read with
TVA Telecom Variance Authority of Nidavellir
SC Supreme Court of India
TRAI Telecom Regulatory Authority of India
TFEU Treaty on the Functioning of the European
Union
The Act The Competition Act,2002
U.S. United States
USSC Supreme Court of the United States
& And
¶ Paragraph

v
 § Section
Odin Odin Automobiles Limited
Hela Hela Motor Company
Fury Fury Vehicles Corporation
JV Joint Venture
AC Annual Conference
KMP Key Managerial Personnel
NAT National Appellate Tribunal
SLP Special Leave Petition

vi
 Statement of Jurisdiction
The Appellants have approached Honourable Supreme Court under §53T of the Competition
Act, 2002.1

1
The Competition Act, 2002.
vii
 Statement of Facts
EITRIS
1. Eitri is a major manufacturer electric car with a market share of 51% based on the value
of sales. Eitri has developed new technology uses a Car Smart Chip (“CSC”) fitted into
the electric cars that intercept 8G to remotely charge electric cars with the use of
smartphone.
2. Ultron is the only to provider of the 8G frequency network.Eitri has recently entered into
a deal with Ultron. The deal is that They would not engage in a similar business
relationship to provide the network services to a comparable remote charging facility in
other electric cars.
3. The allocation, regulation, licensing, distribution and settlement of disputes of frequency
allocation in Nidavellir are regulated by the T VA as per the Telecom Variance Authority
of Nidavellir Act, 1991. 
 JV 
4. Odin, Hela and Fury are three other competitors in the automobile manufacturing
industry in Nidavellir.Odin, Hella and Fury have recently formed a Joint Venture (“JV”)
and forayed into building electric cars along with developing remote charging for their
electric cars.
5. Representatives of Eitri, Odin, Hela and Fury usually interact with each other at the
Annual Conference.
6. JV’s research teams has developed an integrated circuit chipset installed in the car battery
with the ability to access 6G and 7G signals,it  also demonstrated a sporadic ability to
pick up 8G signals.
7. JV approached Ultron to have the arrangement to access the 8G frequency network
service provided by Ultron through the issuance of a license. However, Ultron refused, as
they were contractually agreement with Eitri.
8. Eitri began selling CSC enabled electric cars with Ultron’s 8G network facilities, to meet
the competition. However JV still seemed to be doing well.

viii
9. Under the TVA Act, telecom frequency is a national asset in Nidavellir, any automobile
manufacturer using frequency for mobility is required to obtain a license for the usage of
8G akin to the telecom services provider.
10. Noticing the sudden growth of the JV, Eitri did some internal investigation. The
following are Eitri’s findings:- 
11. There were startling resemblances of the charging system in the cars of the JV to that of
CSC. JV’s charging system was able to intermittently capture the signals of 8G. JV has
no license to use the 8G.
12. Eitri filed a complaint with the TVA alleging that the JV was offering charging facilities
with access to the 8G, without having a valid license
13. The NFTC received anonymous information which alleged that Eitri is violating the
provisions of Sec3and4 of the Act.
14. Eitri and members of JV filed appeals separately before Supreme Court of Nidavellir
against the separate decisions of NAT.

ix
 SUMMARY OF ARGUEMENTS

a. Whether NFTC’s jurisdiction supersedes that of the TVA and the NFTC erred by
passing its final order when the matter was sub-judice before the TVA?
NFTC does not have jurisdiction over case 05 and 06 because:-
The investigation started against Eitri was based on an anonymous tip off.
An anonymous tip off does not qualify as a legal complaints making the case baseless.
The case of JV was already pending before the TVA.
JV has no violated sec 3 of the competition act.
NFTC has overstepped it jurisdiction and taken the case on from TVA, alleging tht the
acts done by JV categories in to violation of sec 3..
b. Whether Eitri is in violation of section 3(4)(c) of the Act?
It is humbly submitted before the Hon’ble Supreme Court that Eitri has not violated Sec. 3(4)(c)
of the competition act, 2002 on the grounds listed below:
1. That, It is only based on anonymous information.
2. That, the said agreement is about providing 8G frequency network which will not restrain
anyone to have access.
3. That, Eitri alone does not have a majority share in the relevant market.
4. That, The Agreement is not anti-competitive in nature.

c. Whether Eitri is in violation of section 4 of the Act?

§4(1) of the Act states that no enterprise or group shall abuse its dominant position. It is
submitted that first, Eitri is not an enterprise [A]. Alternatively, if Eitri is an enterprise,
Eitri is not dominant in the relevant market [B]. Lastly, CCB’s order is disproportionate
[C].

d. Whether Odin, Hela and Fury violated section 3 of the Act?

The Agreement Between Odin, Hela and Fury Does Not Violate §3 Of The
Competition Act as this is within the purview of §3(4) of the Act r/w §3(1) of the Act.

x
 ARGUMENTS ADVANCE

a. Whether NFTC’s jurisdiction supersedes that of the TVA and the NFTC erred by
passing its final order when the matter was sub-judice before the TVA?

1. The NFTC has NO jurisdiction over Case No 5 of 2022 and Case No 6 of 2022.
CASE NO 5 OF 2022 EITRI vs NFTC
2. EITRI is a well respected company. Their CSC technology has garnered immense focus
and investments to support infrastructural development in Nidavellir.
3. The CSC technology works using 8G technology, eitri is the only manufacturer to have
come up with this technology.2
4. Eitri and ULTRON have entered in an agreement. Ultron will provide the 8G frequency
Network service to EITRI would not engage in a similar business relationship to provide
the network services to a comparable remote charging facility in other electric cars.
5. Since, EITRI is the only manufacturer of CSC technology using 8G frequencies it has no
competiter. Nidavellir is going through a technological development era there will be
multiple service providers.
6. NFTC on basis of an ANONYMUS TIP started the entire case. There have been no legal
complaints whatsoever against EITRI or their agreement with ULTRON.
7. The agreement between EITRI and ULTRON has not led to the violation of any of the
sections of the NARA act.
8. Even if there is a dispute, it should fall into the jurisdiction of TVA as they are the
sectoral authority for redressal of contractual dispute3. Thus NFTC has no jurisdiction
over the cases 06 of 2022 EITRI vs NFTC, as there is no case.

CASE NO 6 OF 2022 JV vs NFTC

9. Odin Automobiles Limited (“Odin”), Hela Motor Company (“Hela”) and Fury Vehicles
Corporation (“Fury”) are three other competitors in the automobile manufacturing
2
Moot Prop ¶ 4
3
Competition Commission Of India vs Bharti Airtel Ltd on 5 December, 2018
1
 industry are another companies working on the development of electric cars of
NIDAVELLIR.
10. Odin, Hella and Fury have recently formed a Joint Venture (“JV”) and forayed into
building electric cars along with developing remote charging for their electric cars by
investing huge capital.
11. JV has developed of an integrated circuit chip set installed in the car battery with the
ability to access 6G and 7G signal. This integrated circuit chip has also demonstrated a
sporadic ability to pick up 8G signals. JV did not have the authorisation of using 8G
frequency.
12. Eitri filed a complaint with the TVA on 3 December 2021 alleging that the JV was
offering charging facilities with access to the 8G UHF, without having a valid license /
authorisation to do so. The matter is presently pending before the TVA.
13. The case against JV relating to the authorisation of license is was already pending before
the TVA.the TVA is a sectoral reglatory authority that helps in the settlement of disputes
relating toclarifications of contractual disputes, complaints and violation of rights and
obligations of concerned parties pertaining to frequency allocation etc.
14. The case was pending before the TVA, but the case was wrongly overtaken by the NFTC.
15. During an investigation of the case 05 0f 2002 EITRI vs NFTC, the NFTC found some
emails and alleged that JV has violated sec 3 of the act. NFTC without respecting the
jurisdiction took the case from TVA.
16. JV has not violated any section of the act. 4 The dispute relating to the authorisation of
licence is under the jurisdiction of TVA. Hence, the case should be held before the TVA 5.
Thus NFTC has no jurisdiction over the cases 06 of 2022 JV vs NFTC.
17. The Competition Commission or NFTC is a commission established under sec 7 of the
Competition Act, 2002. Hence NFTC took a suo moto and took the case which was
already falling into their jurisdiction.

4
Competition Commission Of India vs Bharti Airtel Ltd on 5 December, 2018
Monsanto Holdings Private and others vs Competition Commission of India and others on 20
5

May, 2020

2
b. Whether Eitri is in violation of section 3(4)(c) of the Act?
It is humbly submitted before the Hon’ble Supreme Court that Agreements within the purview of
§3(4) of the Act6 would be in contravention of 3(1)7 only if they are likely to cause AAEC. The
market share of the seller in the relevant market is detrimental in deciding whether there is
AAEC in the market due to the exclusive supply agreement. In this case, Eitri has not violated
Sec. 3(4)(c)8 of the competition act, 2002 on the grounds listed below:
1. That, It is only based on anonymous information.
18. As per the provisions to section 3(3) of the Competition Act, an agreement entered into
by way of the joint venture is generally considered to increase the efficiency in the
production, supply, distribution, storage, acquisition or control of goods and the provision
of services; therefore, the presumption of AAEC in the market is not extended to it. The
burden of proof to show an AAEC lies on the person alleging that a particular joint
venture results in or is likely to result in an AAEC. The CCI in Association of Third-
Party Administrators v General Insurers’ Public Sector Insurance and Ors 9 found a
jointly formed captive third-party administrator by all public sector insurance companies
to be efficiency-enhancing and, accordingly, permissible under the Competition Act. In
Indian Glycols Ltd v Indian Sugar Mills Association10, the CCI found joint tendering for
ethanol by oil manufacturing companies to be permissible under the Competition Act,
thus widening the scope of the joint venture exemption to include agreements with
efficiency gains.
By the reasoning of the above cases we can conclude that there should be a clear
appellant, but, here in the present case, there are just anonymous emails. So there is a
question over the burden of proof.
2. That, the said agreement is about providing 8G frequency network which will not restrain
anyone to have access.
19. Vertical agreements are subject to the rule of reason, which means that they are not
considered to have an appreciable adverse effect on competition (AAEC), but are
6
The Competition Act, 2002, §3(4).
7
The Competition Act, 2002, §3(1).
8
The Competition Act, 2002, §3(4)(c).
9
Association of Third-Party Administrators v General Insurers’ Public Sector Insurance and
Ors (Case No. 107/ 2013)
10
Indian Glycols Ltd v Indian Sugar Mills Association (Case No. 21/2013)
3
 evaluated from a legal and economic standpoint to see if they pose a significant threat to
competition. Under section 3(4)11 of the Competition Act, vertical agreements that result
in or are likely to result in an AAEC in India are subject to scrutiny by the Competition
Commission of India (CCI). Section 3(4)12 presents an example of vertical agreements
that are forbidden if they produce an AAEC in India.
20. In Mr Vijay Gopal v Inox Leisure Ltd & Ors13, the parties were alleged to enter into an
exclusive supply arrangement by including a clause in the agreement that ‘Hindustan
Coca Cola Beverages Pvt. Ltd. will act as the exclusive partner of Inox for beverage
availability in the Multiplexes Cinema Theatres of Inox’. However, the clause was
discontinued in successive agreements. The CCI, however, did not find that the alleged
agreement was likely to cause an AAEC for various reasons, including the insignificant
market power of Inox and the choice of Inox to sell competing brands of Cola. The CCI,
in this regard, observed that other brands in the open retail market, as well as inside other
multiplexes, were present, which makes the retail sale market of bottled water and cold
drinks inside the multiplexes highly contestable.
21. In the landmark Auto parts case (Shamsher Kataria v Honda Siel Cars India Ltd and
others14, the CCI imposed a penalty amounting to 25.45 billion rupees on 14 car
manufacturers for entering into an exclusive distribution agreement (among other
violations). Reliance was placed on the dealership agreement as well as an unwritten
understanding between the original equipment manufacturers and their authorised dealers
for ascertaining whether a vertical arrangement in the form of an exclusive distribution
agreement results in or is likely to result in an AAEC in the market.
22. Here in this case Eitri and Ultron signed an agreement to provide 8G frequency and this
is just their understanding and Competitors may develop and take licence to use 8G UHF.
23. The CCI, while analysing vertical arrangements, also takes into consideration whether
sound business justification has been provided by the parties and the commercial nature
of the agreement between the parties to mutually promote their economic interests. In

11
The Competition Act, 2002, §3(4).
12
The Competition Act, 2002, §3(4).
13
Mr Vijay Gopal v Inox Leisure Ltd & Ors (Case No. 29/2018)
14
Auto parts case (Shamsher Kataria v Honda Siel Cars India Ltd and others, (Case No.
03/2011)
4
 Shri Sonam Sharma v Apple Inc USA & Ors 15, while dealing with vertical arrangements,
the CCI closed the matter since, in the concerned market, none of the alleged parties held
a position of strength (in terms of market share) that created entry barriers or drove
existing competitors out of the market.
3. That, Eitri alone does not have a majority share in the relevant market.
24. The dominant position of an enterprise is a reflection of the market power that a firm
enjoys and is reflective of the dominant firm’s ability to operate independent of
prevailing market forces or affect its competitors or consumers or the relevant market in
its favour.Section 416 of the Competition Act defines ‘dominant position’ as: a position of
strength, enjoyed by an enterprise, in the relevant market, in India, which enables it to—
(i) operate independently of competitive forces prevailing in the relevant market; or (ii)
affect its competitors or consumers or the relevant market in its favour.
In terms of the Competition Act; a firm’s dominance does not depend solely on the size
or market share that the firm has, but also on other factors provided under section 19(4)
of the Competition Act. These factors include the:
● market share of the enterprise – however, market share is one of the indicators of
dominance, and it cannot be seen in isolation to give a conclusive finding of
dominance;
● size and resources of the enterprises – in the Float Glass case, the Competition
Commission of India (CCI) refused to conclude that M/s Saint Gobain Glass India
Limited enjoyed a dominant position merely because the data relating to the
production facility and the installed capacity led to the inference that Saint Gobain
was the largest player in the market;
● size and importance of the competitors;
● the economic power of the enterprise, including commercial advantages over
competitors;
● countervailing buying power; and
● market structure and size of the market.

15
Shri Sonam Sharma v Apple Inc USA & Ors(Case No: 24/2011)
16
The Competition Act, 2002, §3(4).
5
 25. Further, it is only within the parameters of a correctly defined relevant market that
dominance of an entity can be assessed; therefore, delineation of the relevant market (as
prescribed under the Competition Act) is imperative to any dominance analysis.
As per the above-given parameters, Eitri does not fall under the category of Dominant
player.
4. That, The Agreement is not anti-competitive in nature.
26. The competition Commission can use the rule of reason to determine whether an
agreement is anti-competitive. According to the rule of reason, any constraint is of no
effect unless it merely controls and fosters competition, as explained by the United States
Supreme Court in the case of Board of Trade of City of Chicago v. US 17. To answer this
question, the Court must evaluate the facts unique to the business to which the restraint is
applied, the state of the business before and after the constraint was imposed, the type of
the restraining order, and its actual or expected effect. But in the given case the said
agreement is not anti-competitive in nature as other companies are free to access 8G UHF
by any other legal means.
c. Whether Eitri is in violation of section 4 of the Act?

1. Eitri is not in violation of section 4 of the Act.

27. §4(1)18 of the Act states that no enterprise or group shall abuse its dominant position. 19 It
is submitted that first, Eitri is not an enterprise [A]. Alternatively, if Eitri is an
enterprise, Eitri is not dominant in the relevant market [B]. Lastly, CCB’s order is
disproportionate [C].

28. According to Section 4 of the Competition Act 2002, Eitri has not violated section 4 of
the Act as they are not holding a dominant position in an electric automotive
manufacturing industry because they have innovated the technology in respect of
decreasing the impact of Increased industrialisation and over population which have
resulted in significant greenhouse gas emissions in the environment which has led to an

17
Board of Trade of City of Chicago v. US (1918) 246 US 231
18
The Competition Act, 2002, §3(4).
19
The Competition Act, 2002, §3(4).

6
 enhanced awareness amongst the population to address the effects of such environmental
pollution.

29. The practice of electric automotive manufacturing is subject to competition law only
insofar as it constitutes an economic activity. 20 Rules of purely sporting interest having
nothing to do with economic activity have been considered outside the purview of
competition law. These, however, must be limited to their proper objective.21

30. Eitri Manufacturers Limited (“Eitri”) is a manufacturer of wireless charging electric cars
in the world that use 6G, 7G and 8G technology for charging. It is an established player
in the electric automotive manufacturing industry in Nidavellir with a market share of
51% based on the value of sales and 30% in terms of the volume. However, the electric
automotive manufacturing industry is only 20% of the overall automotive manufacturing
industry. Therefore, it is submitted that Eitri is not in violation of section 4 of the Act.
2. Eitri is Not Dominant In The Relevant Market
31. A dominant position means a position of strength, enjoyed by an enterprise, in the
relevant market, which enables it to operate independently of competitive forces
prevailing in the relevant market, or affect its competitors or consumers or the relevant
market in its favor.22

32. (“Eitri”) is a manufacturer of wireless charging electric cars in the world that use 6G, 7G
and 8G technology for charging.23 Therefore it cannot affect competition in the relevant
market i.e. because they have innovated the technology in respect of decreasing the
impact of Increased industrialisation and over population which have resulted in
significant greenhouse gas emissions in the environment which has led to an enhanced
awareness amongst the population to address the effects of such environmental pollution.

Hence, it is submitted that Eitri are not dominant in the relevant market and have not violated §4
of the Act.
20
Lehtonen v. Fédération Royale Belge des Sociétés de Basket-ball ASBL (FRBSB), Case C-
176/96, ¶32 (ECJ); Dona v. Mantero, Case 13/76, ¶12 (ECJ).
21
Walrave and Koch v. Union Cycliste Internationale, [1974] ECR 1405, ¶8-9 (ECJ).
22
Explanation (a) to §4, Competition Act, 2002.
23
Moot Prop ¶ 3
7
d. Whether Odin, Hela and Fury violated section 3 of the Act?
1. The Agreement Between Odin, Hela and Fury Does Not Violate §3 Of The Competition
Act.
33. Agreements within the purview of §3(4) of the Act would be in contravention of 3(1)
only if they are likely to cause appreciable adverse effects. 24 Such agreements are not per
se illegal and there is no presumption that they cause appreciable adverse effects. The
rule of reason is applied to assess such agreements. 25 The likely pro-competitive and
anti-competitive effects of an agreement are to be evaluated on a case to case basis, and
only a net negative impact on competition renders it illegal.26
34. In this regard, it is submitted that the agreement between Odin, Hela and Fury does not
cause appreciable adverse effects because first, the merchandising agreement does not
cause a negative impact on the market [A] and secondly, the merchandising agreement
has ameliorating effects on the competition in the market. [B].
2. The Agreement Does Not Cause A Negative Impact On The Market.
35. The Act specifies factors like creation of entry barriers, driving existing competition out
of the market, and foreclosure of competition by hindering entry into the market to
determine the aggravating effects of the agreement. 27 It is submitted that that agreement
between Odin, Hela and Fury does not cause appreciable adverse effects in the relevant
market because first,agreement between Odin, Hela and Fury does not have a majority
share in the relevant market [i], secondly, the exclusive supply agreement was for one
season [ii] and lastly, the automatic renewal clause was for one year only. [iii]
3. Odin, Hela and Fury Does Not Have A Majority Share In The Relevant Market.
36. The market share of the seller in the relevant market is detrimental in deciding whether
there is AAEC in the market due to the exclusive supply agreement. 28 The De Minimis

24
§3(4) r/w §19(3), Competition Act, 2002; Kataria, supra note 8, ¶20.6.11.
25
Tata Engineering and Locomotive Co Ltd (Telco) v. The Registrar of Restrictive Trade
Agreement, 1977 AIR 973, ¶693 (SC).
26
Kataria, supra note 8, ¶20.6.33; Delimitis v. Henninger Brau AG, 1991 ECR I-935, ¶13 (ECJ);
Continental T.V. v. GTE Sylvania, 433 U.S. 36 (1977), ¶11 (USSC); Automobiles Dealers
Association, Hathras v. Global Automobiles Ltd, Case no. 33/2011, ¶12.7 (CCI) [hereinafter,
Automobiles].
27
§19(3)(a)-(c), The Competition Act, 2002.
28
Sonam Sharma v. Apple Inc., Case no. 24 of 2011, ¶20 (CCI); Automobiles, supra note 137,
¶12.10.
8
 doctrine, prescribed by the ECJ, states that where the market share held by each of the
parties to the agreement does not exceed 15% on any of the relevant markets affected by
the agreement, there is no AAEC.29
37. As argued above in the memorandum, the relevant market in this case is the market for
rights for the electric automotive manufacturing industry in Nidavellir. The market share
of the buyer on the upstream purchase market is important for assessing the ability of the
buyer to impose exclusive supply which precludes other buyers from access to supplies. 30
In the instant case, as argued above in the memorandum, Odin, Hela and Fury are neither
a dominant player in the market, nor does it hold a majority share in the relevant market.
38. The importance of the buyer on the downstream market is the factor which determines
whether a competition problem may arise. If the buyer has no market power downstream,
then no appreciable negative effects for consumers can be expected. Negative effects may
arise when the market share of the buyer on the downstream supply market as well as the
upstream purchase market exceeds 30 %.
39. A contract between THESE 3 enterprises that are not dominant in the market, even if
such a contract is a vertical restraint, does not cause market foreclosure. 31 The parties do
not have enough economic power to create entry barriers or drive competition out of the
market. The consumers have enough countervailing buying power.32 In this case, the
foreclosure is not substantial because Odin, Hela and Fury do not have enough market
share to affect market dynamics. Therefore, it is submitted that the agreement does not
cause any AAEC.
40. In this case Odin, Hela and Fury entered into an exclusive innovative agreement. In the
case of Adidas33, it was pointed out that there were many other teams and individuals that

29
Commission Notice on Agreements of Minor Importance (De Minimis), OJ C 368/07, ¶9;
Expedia Inc. v. Autorité de la concurrence, Case C-226/11, ¶23 (ECJ).
30
European Commission Guidelines on Vertical Restraints, O.J. 2010 (C 130) 1, ¶194.
[hereinafter, Vertical Guidelines].
31
U.S. v. Microsoft, 253 F.3d 34, ¶202 (Court of Appeals); HT Media Limited v. Super
Cassettes Industries Limited, Case no. 40/2011, ¶23 (CCI); Consumer Online Foundation v.
Tata Sky, Case no. 02/2009, ¶45 (CCI).
32
Vertical Guidelines, supra note 142, ¶198.
33
Adidas Ltd. v. Football Association of Ireland, Case No. 421 of 12/9/95, ¶24 (Supreme Court
of Ireland); Report by the EC Commission in OECD, Competition Issues Related to Sport, 41
(1996) [hereinafter, Competition Issues Related to Sports].
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 other sportswear manufacturers could enter into similar agreements with. As the
agreement had a limited duration, other electric automotive manufacturing industries
could bid at the appropriate time for the right to supply. Similarly, the reduced extent of
exclusivity in this case does not prevent, restrict or distort competition. The Odin, Hela
and Fury agreement did not prevent it from doing so. Hence it is submitted that,
exclusivity in the agreement does not cause AAEC in the market.
4. The Automatic Renewal Clause Was For One Year Only.
41. The Agreement Has Ameliorating Effects On The Competition
42. According to the Competition Act, it is the effect of the agreement that is important, not
the object. The restrictions in the agreement have to be assessed in the context of the
market to determine their net effect on competition. The vertical restraints in the
agreement need to be reasonable for it to have a positive effect on the competition.34
43. The Act enumerates various factors like benefits to the customers, improvement in
environment and scientific, technical and economic development etc. to be taken into
account to analyze the ameliorating effects of the agreement. 35
44. It also helps with the vertical externality problems. 36 When manufacturers have the
security of manufacturing that product for a considerable time, they try to achieve
economies of scale and this reduces the vertical externalities. 37 This helps to improve
production and distribution of the goods as well as promote technical development in the
market.38
45. In conclusion, electric automotive manufacturing agreements with auto-renewal clauses
result in a lot of pro-competitive effects on the market. Therefore the agreement between
Odin, Hela and Fury has ameliorating effects which results in the net impact on the
agreement being positive.

34
Nungesser v. Commission 1982 ECR 2015, ¶87 (ECJ); Societe Technique Miniere v.
Maschinendau Ulm, 1966 ECR 337, ¶20 (ECJ).
35
§19(3)(d)-(f), Competition Act, 2002.
36
Vertical Guidelines, supra note 142, ¶107(f).
37
R Posner, ANTITRUST LAW, 11 (2nd edn., 2001).
38
§19(3)(e), (f), Competition Act, 2002.

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 46. In conclusion, it is submitted that the agreement does not cause AAEC in the market
under §19(3) of the Act. Therefore it is not in contravention of §3(1) of the Act, and
under §3(2), such an agreement is not void.

Prayer

Wherefore in light of the issues raised, arguments advanced and authorities cited, it is humbly

prayed that this Honourable Court may be pleased to adjudge and declare that:

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 I. NFTC’s jurisdiction supersedes that of the TVA and the NFTC erred by passing its final
order when the matter was sub-judice before the TVA.
II. Eitri has violated of section 3(4)(c) of the Act.
III. Eitri has not violated of section 4 of the Act.
IV. Odin, Hela and Fury has not violated section 3 of the Act.

And pass any other order that this Hon’ble Court may deem fit in the interests of justice,

equity and good conscience.

ON BEHALF OF APPELLANT

COUNSELON BEHALF OF EITRI, ODIN,HELA AND FURY

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