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BCL MOOT COURT

LEGAL DRAFT
FACTS OF THE CASE
i
M/S BRTV the producer of Mahabharata sold the rights to Magnum TV
series to the Dubbe Hindi version in Bengali language. Magnum TV
series appointed heart videos as the sub signer to dub the series in
Bengali language. An agreement was made between channel 10 anti V
9 plus to telecast the dubbed series.
ii
The [East India Motion Picture Association] EIMPA and [Committee of
Artists and Technicians of West Bengal Film and Television Investors]
COORDINATION COMMITTEE opposed the screening of dub series on
the grounds of it will adversely affect the local Bengali film and television
sector. both EIMPA and coordination committee threatened non-
Corporation to channel 10 and CTVN +
iii
Heart videos filed a complaint with the COMPETITION COMMISSION of
India requesting the CCI take action against the two associations for
violation of provision of the said act.
iv
CCl found a Primer Facie opinion that their existence and anti-
corporative concerned and accordingly directed Director General under
section 26 of the act to investigate though complaint the findings of the
report the act of the coordination committee and EIMPA threatening non-
cooperation in telecast of such series amount to foreclosure of
competition by hindering entry into market therefore the action of the two
associations amount to anti-competitive agreement and there was
violation of Section 3[3]B of the act.
v
The coordination committee appealed against the majority order of the
CCI to the competition aptitude tribunal the tribunal held that the CCI
and DG had erred in defining the relevant market with the relevant
market drink telecasting of dubbed series on television in the state of
West Bengal and not the film and television industry of West Bengal and
the tribunal held that complaint could not be scrutinised under Section 3
the CCI appealed the decision of tribunal before the Supreme Court.

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ISSUES RAISED

1.It is whether the acts of the coordination committee and EIMPA are
violative of section 3 of the competition act.
2.what is the relevant market of the coordination committee, whether the
coordination committee is abusing its dominant position.

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ARGUMENTS

1. The Co-ordination Committee approached Shri Mithun Chakraborty,

the leading actor of Indian Film Industry and the Chief Adviser of
Channel 10 and finally succeeded in getting the telecast of Mahabharata
stopped by Channel 10.” The DG concluded that the action on the part
of Coordination Committee had resulted in foreclosure of competition by
hindering entry into the market. The DG also held that by not allowing
the dubbed version of the serial, the Coordination Committee foreclosed
the business opportunities for the businessmen engaged in the
production, distribution, and exhibition, telecast of such programmes.
The DG, therefore, concluded that the actions on the part of EIMPA and
Coordination Committee were in violation of the provisions of Section
3(3)(b) of the Act, since they restricted and controlled the market and
supply of dubbed versions of serials on the Television Channels through
collective intent of all the constituents/associations coming together on
one platform.
3(3) Any agreement entered into between enterprises or associations of
enterprises or persons or associations of persons or between any person
and enterprise or practice carried on, or decision taken by, any association
of enterprises or association of persons, including cartels, engaged in
identical or similar trade of goods or provision of services, which —
(b) limits or controls production, supply, markets, technical development,
investment or provision of services
Acts of Coordination Committee definitely caused harm to consumers by
depriving them from watching the dubbed serial on TV channel; albeit for
a brief period. It also hindered competition in the market by barring dubbed
TV serials from exhibition on TV channels in the State of West Bengal. It
amounted to creating barriers to the entry of new content in the said
dubbed TV serial. Such act and conduct also limited the supply of serial
dubbed in Bangla, which amounts to violation of the provision of Section
3(3)(b) of the Act.

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2. what is the relevant market of the coordination committee, whether the

coordination committee is abusing its dominant position
(r) “relevant market” means 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;
(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;

Section 19(1) empowers the CCI to enquire into such agreements based
on factors mentioned in 19(3) which, amongst others, are agreements
which create barriers to new market entrants or foreclose competition by
hindering entry into the market. Section 19(6) lists the factors for
determination of relevant geographic market while 19(7) lists the factors
for determination of relevant product market.
In Builders Association of India case. CCI had held that determination of
relevant market is not a pre-requisite for an analysis of anti-competitive
conduct and that distinction between market and relevant market was
intentional. The latter has also been expanded by widening the defining
factors to include effected market, which is not defined anywhere in the
Act. The term market appears in sections 3 and 19(3) whereas relevant
market appears in sections 4, 19(5), (6) and (7) where the determination
arises only for analysis of abuse of dominant position.

prayer

In the lights of facts stated, issue raised, arguments advanced and

authority cited: -
• To overturn the decision of the competition appellant tribunal
• To compensate for the loss suffered by the heart videos for the
amount of Rs 1cr [which covers production, distribution, and
exhibition, telecast of such programmes]
• Any other relief the honourable court feels in the interest of justice.
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1.“agreement” includes any arrangement or understanding or

action in concert, —
(i) whether or not, such arrangement, understanding or action is formal
or in writing
(ii) whether or not such arrangement, understanding or action is
intended to be enforceable by legal proceedings
2. “person” includes—
(i) an individual;
(ii) a Hindu undivided family;
(iii) a company;
(iv)a firm;
(v) an association of persons or a body of individuals, whether
incorporated or not, in India or outside India;
(vi) any corporation established by or under any Central, State or
Provincial Act or a Government company as defined in section 617 of the
Companies Act, 1956 (1 of 1956);
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(vii) any body corporate incorporated by or under the laws of a country

outside India;
(viii) a co-operative society registered under any law relating to co-
operative societies;
(ix) a local authority;
(x) every artificial juridical person, not falling within any of the preceding
sub-clauses;
3. Anti-competitive agreements 3. (1) No enterprise or association of
enterprises or person or association of persons shall enter into any
agreement in respect of production, supply, distribution, storage,
acquisition or control of goods or provision of services, which causes or is
likely to cause an appreciable adverse effect on competition within India.
4. 3(2) Any agreement entered into in contravention of the provisions
contained in subsection (1) shall be void
5. 3(3) Any agreement entered into between enterprises or associations
of enterprises or persons or associations of persons or between any
person and enterprise or practice carried on, or decision taken by, any
association of enterprises or association of persons, including cartels,
engaged in identical or similar trade of goods or provision of services,
which—
(b) limits or controls production, supply, markets, technical development,
investment or provision of services
6.Inquiry into certain agreements and dominant position of
enterprise
19. (1) The Commission may inquire into any alleged contravention of the
provisions contained in subsection
(1) of section 3 or sub-section (1) of section 4 either on its own motion or
on—
(a) 29[receipt of any information, in such manner and] 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

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19()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; or
(f)promotion of technical, scientific and economic development by means
of production or distribution of goods or provision of services

19()The Commission shall, while determining the “relevant geographic

market”, have due regard to all or any of the following factors,
namely:—
(a) regulatory trade barriers;
(b) local specification requirements;
(c) national procurement policies;
(d) adequate distribution facilities;
(e) transport costs;
(f) language;
(g) consumer preferences;
(h) need for secure or regular supplies or rapid after-sales services

19(7) The Commission shall, while determining the “relevant product

market”, have due regard to all or any of the following factors, namely:
(a) physical characteristics or end-use of goods;
(b) price of goods or service
(c) consumer preferences;
(d)exclusion of in-house production;

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(e) existence of specialised producers;

(f)classification of industrial products.

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Section 26(1) in the Competition Act, 2002

(1) On receipt of a complaint or a reference from the Central Government
or a State Government or a statutory authority or on its own knowledge or
information, under section 19, if the Commission is of the opinion that
there exists a prima facie case, it shall direct the Director General to cause
an investigation to be made into the matter.

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The Supreme Court vide its order dated March 7, 2017 in Competition Commission of India v.
Coordination Committee of Artist and Technicians of WB Films and Television[1] has made
observations on issues such as the role and scope of relevant markets, the definition of an
‘enterprise’ and what would constitute an agreement in determining violations of the provisions
of Section 3 of the Competition Act, 2002 (hereinafter referred to as the “said Act”).
Brief Background of the Case
M/s BRTV, the producer of “Mahabharata”, had entrusted the sole and exclusive rights of the
serial to M/s. Magnum TV Serials to dub the Hindi version in Bangla language. M/s. Magnum
TV Serials was also given the rights to exploit its Satellite, Pay TV, DTH, IPTV, Video, Cable
TV and internet rights on the dubbed version till September, 2016. Thereafter, M/s. Magnum
TV Services appointed M/s. Hart Video (hereinafter referred to as “Hart Video”) as the sub-
assigner to dub the serial in Bangla language.
For the purpose of broadcasting the dubbed series an agreement was entered into for
telecasting it on two TV channels viz., ‘Channel 10’ and ‘CTVN+’. However, two associations,
namely the Eastern India Motion Picture Association (hereinafter referred to as “EIMPA”) and
Committee of Artists and Technicians of West Bengal Film and Television Investors
(hereinafter referred to as the “Coordination Committee”), opposed the screening of the
dubbed series on the grounds that it would adversely affect the artists and technicians working
in West Bengal by acting as a deterrent to production of such serials in Bangla.
Through written letters, both EIMPA and the Coordination Committee threatened non-
cooperation to ‘Channel 10’ and ‘CTVN+’, if they telecast the dubbed serial. Thereafter, Hart
Video filed a complaint with the Competition Commission of India (hereinafter referred to as
“CCI”), requesting the CCI to take actions against the two associations for violations of the
provisions of the said Act.
Order of CCI
The CCI formed a prima facie opinion that there existed an anti-competitive concern and
accordingly directed the Director General (hereinafter referred to as “DG”) to investigate the
complaint. The DG during the course of investigation found that the details contained in the
information supplied by Hart Video were factually correct. The DG in his report defined the
relevant market as the market for ‘film and television industry of West Bengal’ and concluded
that the acts of the Coordination Committee and EIMPA threatening non-cooperation in the
telecast of such serial amounted to foreclosure of competition by hindering entry into the
market. Therefore, the actions of the two associations amounted to an anti-competitive
agreement and there was violation of Section 3(3) (b) of the Act.
A major contention raised by the Coordination Committee was that it comprised of artists and
technicians that worked in the West Bengal Film and T.V. Industry and consisted of West

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Bengal Motion Picture Artists' Forum and Federation of Cine Technicians and Workers of
Eastern India only and was, in fact, a trade union of the artisans and technicians under the
Trade Union Act.
Therefore, it was argued that the Coordination Committee was neither an 'enterprise' nor was
it a ‘person’ or ‘association of persons’ who were in the business of production, supply and
distribution or providing services etc. Further, their actions would not fall under Section 3(1) of
the said Act but were instead part of their constitutional right to protest.
The majority order of the CCI agreed with the findings of the DG and held that the association
has led the TV channels not broadcasting the TV Serial and as a result violated Section 3(3)
(b) of the Act. The submissions made by the Coordination Committee were accepted and the
CCI held that although such associations did not fit into the definition of an ‘enterprise’ and
accordingly could not be subject to claims of abuse of dominance. However, the CCI observed
that they were subjected to the provisions of Section 3(3) since the Co-ordination Committee
comprised of associations whose members are engaged in televisions and film industry.
Appeal to Competition Appellate Tribunal
The Coordination Committee appealed against the majority order of the CCI to the Competition
Appellate Tribunal (hereinafter referred to as “COMPAT”). The COMPAT held that the CCI
and DG had erred in defining the relevant market with the relevant market being ‘telecasting
of dubbed serial on television in the State of West Bengal’ and not the ‘film and television
industry of West Bengal’.
Further, the COMPAT held that the complaint could not be scrutinized under Section 3 and
hence there could be no contravention of Section 3 of the said Act. COMPAT concluded that
since the Coordination Committee was not trading in any groups, or provisions of any services,
much less by the persons engaged in identical or similar trade or provisions of services, no
agreement as envisaged under the provisions of Section 3 of the said Act was entered into.
Questions before the Supreme Court:
The CCI appealed the decision of COMPAT before the Supreme Court. The Supreme Court
identified that there were two issues for determination:
1. What is the exact relevant market for the purposes of inquiry into the impugned activity
of the Coordinated Committee? and
2. Whether the action and conduct of the Coordination Committee is covered by the
provisions of Section 3 of the Act?
It is pertinent to note that the Supreme Court did not adjudicate on the issue whether the
activities of the Coordination Committee amounted to abuse of dominant position as the
majority view of the CCI had previously accepted that the impugned activities of the
Coordination Committee did not amount to abuse of dominant position.
Observations of the Supreme Court
i. What is the exact relevant market for the purposes of inquiry into the impugned activity of
the Coordinated Committee?

• The Supreme Court observed that the objective of defining a relevant market in both
its product and geographic dimension was to identify those actual competitors of the
undertakings involved that were capable of constraining those undertakings behaviour
and of preventing them from behaving independently of effective competitive pressure.

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• The concept of relevant market implies that there could be an effective competition
between the products which form part of it and this presupposes that there is a
sufficient degree of interchangeability between all the products forming part of the
same market insofar as specific use of such product is concerned and the CCI must
look at evidence that is available and relevant to the case at hand while determining
the relevant market.
• The Supreme Court held that COMPAT had taken a myopic view of the relevant market
and referring to letters written by the Coordination Committee which themselves stated
that the proposed broadcast of the dubbed serial would adversely affect the 'TV and
Film Industry of West Bengal', held that this would be the relevant market in which an
assessment would need to be made on the question of whether competition was
affected.
ii. Whether the action and conduct of the Coordination Committee is covered by the provisions
of Section 3 of the Act?

• The Supreme Court observed that the term 'enterprise' was wide in nature and may
refer to any entity, regardless of its legal status or the way in which it was financed
and, therefore, it may include natural as well as legal persons.
• The agreement referred to in Section 3 of the Act has to relate to an economic activity
which is generally understood to mean offering products in a market to consumers. For
example, an individual acting as a final consumer would not be considered as an
enterprise or a person envisaged, as he is not carrying on an economic activity.
• The Supreme Court, therefore, found that the Coordination Committee was an
'enterprise' as it was engaging in an economic activity. Further, the Supreme Court
held that the prohibition of exhibition of dubbed serial prevented competing parties
pursuing their commercial activities and also hindered competition in the market.
Therefore, the Supreme Court affirmed the CCI's order and set aside the COMPAT's
judgment and observed that the activities of the Coordination Committee amounted to
violation of Section3(3)(b) of the said Act.
Conclusion
This is one of the first decisions of the Supreme Court with regards to the Competition Act,
2002 and the observations made in the present case are likely to have wide reaching
implications on how investigations and assessments will be conducted by the CCI and DG in
case complaints are made pertaining to violations of the provisions of Section 3 of the said
Act.

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