Section 19 of Wadiya The Competition Act, 2002: Before

T14 – OPPOSITE PARTY
5th TNNLU- CCI

NATIONAL MOOT COURT COMPETITION, 2023
Before
THE HON’BLE COMPETITION COMMISSION OF WADIYA
Under
SECTION 19 OF WADIYA THE COMPETITION ACT, 2002
IN RE: Omega, Raven Pvt. Ltd., Paper Sky Wadiya Ltd., AmbroxWadiya Ltd.
& FaceView
Case No. of 2023
Against:
Omega OPPOSITE PARTY 1
United States of America
Raven Pvt. Ltd. OPPOSITE PARTY 2

Wadia
Paper Sky Wadiya Ltd. OPPOSITE PARTY 3

Wadia
AmbroxWadiya Ltd. OPPOSITE PARTY 4

Wadia
FaceView OPPOSITE PARTY 5

United States of America
MEMORANDUM on behalf of RESPONDENTS

TABLE OF CONTENTS
Table of Contents
TABLE OF CONTENTS ........................................................................................................... 2
LIST OF ABBREVIATIONS .................................................................................................... 4
INDEX OF AUTHORITIES...................................................................................................... 7
STATEMENT OF JURISDICTION........................................................................................ 15
STATEMENT OF FACTS ...................................................................................................... 16
ISSUES RAISED ..................................................................................................................... 18
SUMMARY OF ARGUMENTS ............................................................................................. 19
ARGUMENTS ADVANCED ................................................................................................... 1
ISSUE 1 -WHETHER THE CCW HAS JURISDICTION TO ADJUDICATE ON

THE MATTER OF DATA PRIVACY? .............................................................. 1
[1] No data privacy breach........................................................................................................ 1
[2] Data Collection is necessary for innovation. ...................................................................... 3
[3] Different Law. ...................................................................................................................... 7
ISSUE 2: WHETHER OMEGA ABUSED ITS DOMINANT POSITION? ............................ 9
[1] What Is the Relevant Market In The Present Case? .......................................................... 9
[2] Omega Has Not Abused Its Dominant Position. .............................................................. 12
ISSUE 3- WHETHER CCW HAS THE POWER TO INQUIRE INTO THE

COMBINATION TO RE-ASSERT AAEC AFTER THE LAPSE OF 1
YEAR?................................................................................................................ 17
[1] CCW cannot inquire the matter after the elapse of 1-year statutory period. .................. 17
[2] CCW cannot re-assert adverse impact on the competition after approval. ..................... 18
ISSUE 4- WHETHER INCLUSION OF OMEGA AS A PARTY TO THE CASE IS

VALID? .............................................................................................................. 21
[1] Omega Exercises No Control Over Its Subsidiaries’actions. .......................................... 21
[2] The Parent Company Liability Test Is Not Satisfied........................................................ 22
PRAYER ...............................................................................................................................xxiii
LIST OF
ABBREVIATIONS
ABBREVIATIONS FULL FORM
% PERCENTAGE
& AND
§ SECTION
¶ PARAGRAPH
AAEC APPRECIABLE ADVERSE EFFECTS
Anr. ANOTHER
C CASE
CCI COMPETITION COMMISSION OF INDIA
CCW COMPETITION COMMISSION OF WADIYA
Cir. CIRCUIT
CLRC COMPETITION LAW REVIEW COMMITTEE
COMP COMPETITION
Comp LR COMPETITION LAW REVIEW
Comp. COMPETITION
COMPAT COMPETITION APPELLATE TRIBUNAL
Corp. CORPORATION
Del DELHI
DG DIRECTOR GENERAL
EC EUROPEAN COMMISSION
ECJ EUROPEAN COURT OF JUSTICE
Econ. ECONOMICS
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ELECTRONIC COURT RECORDS
ECR
ed. EDITION
eds. EDITORS
et. al. AND OTHERS
etc. ET CETERA
EU EUROPEAN UNION
FTC FEDERAL TRADE COMMISSION
i.e. ID EST
Id. IBID
In Re IN REFERENCE
Ind INDIA
J. JOURNAL
L. LAW
LR LAW REPORTS
Ltd LIMITED
M/s. MESSRS
Mr. MISTER
No. NUMBER
OECD ORGANISATION FOR ECONOMIC CO-
OPERATION AND DEVELOPMENT

Ors. OTHERS
Para PARAGRAPH
pt. PART
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Pvt. PRIVATE
r/w READ WITH
Reg. REGULATION
Rodeo RODEO PAY
SC SUPREME COURT
SCC SUPREME COURT CASES
Sec. SECTION
Trickster TRICKSTER.COM
U.S. UNITED STATES
UK UNITED KINGDOM
US UNITED STATES
v. VERSUS
Vol. VOLUME
vs. VERSUS
VBER VERTICAL BLOCK EXEMPTION

REGULATIONS
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INDEX OF AUTHORITIES
BOOKS PG. NO.
Abir Roy & Jayant Kumar, Competition Law In India (First published 4, 6, 7
2018, Eastern Law House 2018)
Competition Commission of India, Compliance Manual for Enterprises (D.P.

10
Mittal, Competition Law And Practice 334 (Taxmann Publications Private
Limited 2011).
Lennart Ritter Et. Al., W. David Braun, European Competition Law: A

10
Practitioner's Guide, (3rd ed. 2005).
Loannis Lianos, Valentine Korah and Paolo Siciliani, Competition Law 19
(first published in 2019, Oxford University Press 2019)
7
Whish R and Bailey D, Competition Law (Oxford University Press, 2018)
viii | P a g e
INDIAN CASES PG. NO.
Karmanaya Singh Sareen v. Union of India, (2016) SCC OnLine Del 5334 1
Competition Commission of India v. Bharti Airtel Limited and Ors., (2019) 2 SCC 521
9
In Re: Whatsapp LLC (2021) SCC OnLine CCI 19 9
Mohit Manglani v. Flipkart India (P) Ltd., (2015) SCC OnLine CCI 61. 10
10
CCI v. Co-ordination Committee of Artists and Technicians of W.B. Film and Television, AIR
2017 SC 1449.
Hoffmann-La Roche & Co. v. Commission, (1979) ECR 461.

11
Sunil Bansal v. Jaiprakash Associates Ltd., (2015) Comp LR 1009 (CCI).

11
CCI v. Co-ordination Committee of Artists and Technicians of WB Film and Television, AIR
2017 SC 1449. 11
Sai Wardha Power Company Ltd. v. Western Coalfields Ltd., 2014 Comp LR 265
13
xi | P a g e
Nathi Devi v. Radha Devi Gupta, AIR 2005 SC 648
18
Rajeev Hitendra Pathak v. Achyut Kashinath Karekar, (2011) 9 SCC 541.

20
Kapra Mazdoor Ekta Union v. Birla Cotton Spinning and Weaving Mills Ltd. (2005)
20
13 SCC 777.
Haryana State Industrial Development Corporation Ltd. v. Mawasi, (2012) 7 SCC 200.
20
Narshi Thakershi v. Pradyumansinghji, AIR 1970 SC 1273.

21
Brahm Dutt v. Union of India, (2005) 2 SCC 431.

21
Free Wheel (India) Limited v. Dr. Veda Mitra & Another, AIR 1969 Delhi 258.
22
Judhah v. Rampada Gupta, AIR 1959 Cal 715.

26
U.K. Mehra v. Union of India, AIR 1994 Delhi 25.

22,23
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FOREIGN CASES
PG. NO.

11
Case No COMP/M.4731 – Google/ DoubleClick

5
Eni SpA v. Commission, Case C-508/11, [2013] E.C.R. I

24
Europemballage Corporation and Continental Can Company Inc. v

13
Commission of the European Communities 8 [1973] EUECJ C-6/72.

13
Case No COMP/M.7217 - FACEBOOK/ WHATSAPP

14
AAA v. Unilever plc, [2018] EWCA Civ 1532.

22
Holding Slovenskeelektrarne doo (HSE) v.Commission, Case T-399/09 (2014)

23
4 CMLR21.
Hunter v. Baker Motor Vehicle

23
Co. (1915) 225 Fed. 1006;
1
General TechnicOtis v. Commission, Joined Cases T-141/07, T-142/07, T-
23
145/07 and T-146/07 (2011) ECR –II 4977.
Kendrion NV, Case C-50/12 P, [2013] E.C.R. I

24
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Elf Aquitaine SA v. European Commission, E.C.R. I-8947.
24
Schindler Holding v. Commission, Case C-501/11

24
P, [2013] E.C.R. I
Contra garantovanáa.s. v. Commission, Case T-392/09, [2012] E.C.R. II.

24
Henry W. Ballantine, Separate Entity of Parent and Subsidiary Corporations,

24
14 CLR 12, 17 (1925
Aristrain v. Commission, Case C-196/99 P, (2003) E.C.R I11005.

24
L’Air liquid, (2011) E.C.R. II-2809.

25
Akzo Nobel and Others v. European Commission, (Case C-97/08 P)

23,24,25,26
General Quimica v. Commission, Case C-90/09 P, (2011)

25,27
E.C.R. I-000;
General Química SA v. Commission, C-90/09 P [2011] ECR I- 1.

27
Air Liquide v. Commission, Case T-185/06, (2006) E.C.R. II-2809;

25
Edison v. Commission, Case C-446/11 P, (2013) E.C.R

25
Groupe Gascogne v. Commission, Case C-58/12 P, (2013) E.C.R. I

25
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Linn & Lane Timber
26
Co. v. U. S. (1915) 236 U. S. 574.
U. S. v. Reading Co. (1920) 253 U. S. 26

26
Ferguson v. Wilson, (1866) 2 Ch App 77

26
Alliance One International Inc. v. Commission, Cases C-628/10 P and C- 14/11

26
P [2012] 5
Koninklijke Grolsch v. Commission, Case T-234/07, [2011] E.C.R. II-6169.

26
Sainsbury’s Supermarket Ltd. v. Mastercard Incorporated, (2016) CAT 11.

27
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JOURNALS AND ARTICLES PG. NO.
John Temple Lang, How Can The Problem of The Liability of A Parent Company 25
for Price Fixing by A
Wholly-owned Subsidiary Be Resolved?, 37 Fordham Intl LJ 1481, 1487 (2014).
Stefan Thomas, Guilty of a Fault that One Has Not Committed: The Limits of the 24
Group-Based Sanction
Policy Carried Out by the Commission and the European Courts In EU-Antitrust
Law, 11 J. Eur. Compet. Law
Pract. 28, 31 (2015).
Anja Lambrecht & Catherine E. Tucker, Can Big Data Protect a Firm From 5
Competition? ANTITRUST CHRONICLE, CPI, (2017),
Burton G. Malkiel, The Invisible Digital Hand, THE WALL STREET 5

JOURNAL
1
Shalini Ramachandran & Suzanne Vranica, Comcast Seeks to Harness Trove 4
of TV Data, THE WALL STREET JOURNAL (
Acxiom Corp., 2013 10K Annual Report for the Period Ending March 31, 2013 4
and Staff of S. Comm. on Commerce, Sci., and Transp.,
Shapiro, C., & Varian, H. R. (1999). The Art of Standards Wars. California 4
Management Review, 41(2), 8–32.
KENNEDY, J. (2017) The Myth of Data Monopoly: Why Antitrust Concerns 4,14,15
About Data Are Overblown, Why Antitrust Concerns About Data Are
Overblown - Itif
Andreas Wiebe, ‘Protection of industrial data –a new property right for the 3,13
digital economy?’ (2017) 12(1) Journal of Intellectual Property Law & Practice
67 (Accessed: 09 May 2023),
OECD, ‘Big Data – Bringing Competition Policy to the Digital Era’ (2016) 3
xvi | P a g e
ONLINE RESOURCES PG. NO.
5
1
Arvind Narayanan and Vitaly Shmatikov (no date a) Robust de-anonymization
of large sparse datasets. Available at:
https://www.cs.utexas.edu/~shmat/shmat_oak08netflix.pdf
Damiani, J. (2020) Oracle’s BlueKai spilled ‘billions of records’ of web-tracking 4

data, Forbes Available at:
https://www.forbes.com/sites/jessedamiani/2020/06/19/oracles-bluekai-spilled-
billions-of-records-of-web-tracking-data/ (Accessed: 8 May 2023).
Craig Timberg, Google Facing FTC Scrutiny Over Privacy—Yet Again, THE 5
WASHINGTON POST (Accessed: 8 May
2023).https://www.washingtonpost.com/news/the-
switch/wp/2016/12/19/google-facingftc-scrutiny-over-privacy-yet-again/.
Economist, T. (ed.) (2017) Will artificial intelligence help to crack Biology?, The 5
Economist. Available at: https://www.economist.com/science-and-
technology/2017/01/07/will-artificial-intelligence-help-to-crack-biology
(Accessed: 08 May 2023).
Katie Fehrenbacher, “How Tesla is ushering in the age of the learning car”, 7
FORTUNE (Accessed: 09 May 2023), https://fortune.com/2015/10/16/how-tesla-
autopilot-learns/.
The Guardian, Why is Candy Crush Saga so popular, ( Accessed : April 18, 2023), 7
http://www.theguardian.com/technology/2014/mar/26/candy-crush-saga-king-
why-popular.
xvi | P a g e
STATEMENT OF
JURISDICTION
THE JURISDICTION OF THE HON’BLE COMPETITION COMMISSION OF

WADIYA HAS BEEN INVOKED SUO-MOTO UNDER
SECTION 19(1) OF THE COMPETITION ACT, 2002
• SECTION 19 (1): INQUIRY INTO CERTAIN AGREEMENTS AND DOMINANT

POSITION OF ENTERPRISE.
Inquiry into certain agreements and dominant position of enterprise (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) 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.
OPPOSITE PARTY HUMBLY SUBMITS TO THE JURISDICTION OF THIS

HON’BLE COMMISSION
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STATEMENT OF FACTS
REPUBLIC OF WADIYA
Republic of Wadiya, a democratic republic, is situated in South Asia. It gained independence
in 1947. After liberalisation, the market expanded owing to the entry of domestic and foreign
private entities. To regulate the competition in the market economy, the legislature formulated
the Monopolies and Restrictive Trade Practices Act, which was replaced by the Wadiya
Competition Act in 2002.
RISE OF SOCIAL MEDIA & OMEGA
Wadiya is an attraction for the global technology conglomerates since it had the highest
population. Omega is a pioneer in social media through its thought and photo sharing platform,
FaceView. FaceView connects people through its instant messaging services. Due to its
adaptive nature, FaceView had a good 53% share in the market by 2009.
FACEVIEW’S REVENUE GENERATION
FaceView operated in a free market economy. Its earned revenue through advertisements and
sponsored posts, using consumer data. The advertisements displayed to a user were customized
on the basis of the data so collected.
EMERGENCE OF WEMESSAGE & SUBSEQUENT ACQUISITION
WeMessage, which provided internet messaging service using user’s phone number, entered
the market. The data stored by WeMessage was limited. WeMessage was growing at a fast
pace. It soon caught Omega’s attention and it was sold at 17 billion Dollars. Shortly,
WeMessage started sharing its consumer’s details with FaceView. It also incorporated features
present in other Omega platforms through Interface codes and Faceview’s data.
RIGHT TO PRIVACY, A FUNDAMENTAL RIGHT
The Hon’ble Supreme court in K.S. Puttaswamy v. Union of Wadiya addressed the issue of
rising technology stepping on users’ private information by ruling that Right to Privacy falls
under the rubric of Fundamental Rights.
RAVEN
In 2019, Raven Pvt. Ltd., a small start-up which generated a random user ID for each user and
did not use their private information. This led to the formation of a small group, DigitalWadiya,
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who were known for spreading awareness about Privacy and Data protection. Considering
Raven’s growth, it decided to launch an Initial Public Offering for expansion, but due to the
challenges faced by it and need for capital, the IPO idea was converted to inviting private
investors.
INVESTMENT IN RAVEN
Raven rejected Omega’s offer due to its questionable practices and tied up with a) Mushy
Finance, b) Paper Sky Wadiya Ltd, c) AmbroxWadiya Ltd., that acquired 9% each of Raven’s
shareholding. The Share Purchase Agreement between them had a specific clause which
provided for sharing information between them and Raven. Paper Sky and AmbroxWadiya
were already working for Omega and in November 2021, they were acquired by Omega and
the combination was notified to and approved by the Competition Commission on January 31,
2022. Post investment, the new privacy policy contained clauses related to collecting users’
data. It also included that the personal data so collected will be shared with the stakeholders.
INFORMATION TO CCI BY DIGITALWADIYA
This provoked DigitalWadiya to publish their concerns regarding the new privacy policy and
it submitted information of possible AAEC under Section 20 of the Act before the CCW on
February 25, 2023. Considering this, the Commission ordered an investigation by the Director
General.
DIRECTOR GENERAL’S REPORT POST INVESTIGATION
The DG highlighted the “Sharing of Information” clause from the Share Purchase Agreement
dated March 27, 2021 and further noted that Omega’s combination with Paper Sky and
AmbroxWadiya creates and indirect interest of Omega in Raven and pointed that the
abovementioned agreement was intentional.
PRESENT DISPUTE
Omega questioned the jurisdiction of the Commission in the present matter. It challenged the
Commissions powers to assert the combination after it has been approved by the Commission
and that the combination cannot be reinvestigated due to the lapse of 1 year. Further, it claimed
that Omega cannot be held liable for any effects arising out of the agreement signed on March
27, 2021 since it was not a party to the investment and owing to such disputes, the final hearing
is set to be held on May 13 & 14, 2023 before the Chairman and other members of the CCW.
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ISSUES RAISED
The following questions have been raised for the consideration of the Hon’ble
Commission:
~ISSUE – I~
WHETHER THE CCW HAS JURISDICTION TO ADJUDICATE ON THE MATTER

OF DATA PRIVACY?
~ISSUE – II~
WHETHER OMEGA ABUSED ITS DOMINANT POSITION?
~ISSUE – III~
WHETHER CCW HAS THE POWER TO INQUIRE INTO THE COMBINATION TO

RE-ASSERT AAEC AFTER THE LAPSE OF 1 YEAR?
~ISSUE – IV~
WHETHER INCLUSION OF OMEGA AS A PARTY TO THE CASE IS VALID?
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SUMMARY OF ARGUMENTS
ISSUE 1 -WHETHER THE CCW HAS JURISDICTION TO ADJUDICATE ON THE

MATTER OF DATA PRIVACY?
It is respectfully submitted that CCW acks jurisdiction over the issue of data privacy, as there
is no violation of data privacy by Raven/Omega. The users of Raven/Omega retain complete
control over their data. The collection of data does not give rise to any anti-competitive
practices, such as an abuse of dominance, as the data is readily available on the internet for
other competitors to acquire. It is essential for Omega to gather data from its consumers to gain
a better understanding of their needs and innovate accordingly. Any attempt to label data
collection as an anti-competitive practice would impede this growth. Even assuming, arguendo,
that Omega did breach the data privacy of its users, it should be noted that there exist adequate
regulatory bodies with jurisdiction over privacy issues. These bodies are responsible for
identifying and penalizing any breaches of data privacy.
ISSUE 2: WHETHER OMEGA ABUSED ITS DOMINANT POSITION?

It is respectfully submitted that Omega doesn’t possess the dominant position in the market,
The relevant market for Omega is very wide and open for competing firms. Assuming arguendo
that is has dominance in the market there is no concrete evidence to suggest that it has abused
its dominance which is condition precedent to prove abuse. The data collected by omega is
result of its systems crated in 19 years. That the collected data is not used in detriment of its
cosumer rarther it helps omega in innovating and providing better user experience to
consumers. The consumers of Omega face no exit barriers, given that Omega operates within
a zero-price market. The market in which Omega operates, is open and accessible to potential
competitors. This is evident from the success of rival firms like Facebook, Snapchat, and
formerly Instaview, who were able to establish their own market share despite the presence of
a dominant player.

COMBINATION TO RE-ASSERT AAEC AFTER THE LAPSE OF 1 YEAR?
The contention is that the Competition Commission of Wadiya lacks the authority to initiate
an inquiry into a combination. It is argued that the Competition Act of 2002 explicitly states
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that no inquiry into a combination can take place after a period of one year from its effectuation
date. Additionally, it is asserted that the statute does not confer upon the Commission the power
to revoke or review its own orders. In the present case, since the combination has previously
received approval from the Commission and more than one year has elapsed since its
establishment, it is argued that the Commission would be exceeding its authority by reopening
the said combination.
ISSUE 4: WHETHER INCLUSION OF OMEGA AS A PARTY TO THE CASE IS
VALID?
It is contended that Omega is not a relevant party to this case as the parent – liability test is not
satisfied. The presumption of decisive influence can be rebutted as there is no evidence to show
Omega’s control over its subsidiary. The actions of Papersky and Ambrox were of their alone
and Omega had no say in it. Furthermore, Ambrox and Papersky has directors independent of
Omega who are capable of taking such decisions themselves. It is the duty of the Commission
to maintain that the presumption doesn’t become irrebuttable. This would then amount to a
breach of fundamental rights and the parent company would be liable in every case. Even if it
is assumed that Omega exercised decisive influence over Ambrox and Papersky, there is no
evidence which shows Omega’s material fault and hence the parent – liability test is not
satisfied.
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ARGUMENTS
ADVANCED
ISSUE 1 -WHETHER THE CCW HAS JURISDICTION TO ADJUDICATE ON THE

MATTER OF DATA PRIVACY?
It is humbly submitted before the Hon’ble Competition Commission of Wadiya (hereinafter

‘CCW’) that this commission doesn’t have jurisdiction to adjudicate on this matter as [1]
There is no breach of data privacy, [2] Data privacy is a competition law concern, [3] Separate
legislation to deal with it.
[1] No data privacy breach.

1. It is respectfully submitted that no case for data privacy is made against the consumers of
Raven. The Black’s Law Dictionary defines data privacy as right that determines the non-
intervention of secret surveillance and the protection of an individual’s information.
2. That data privacy, in essence, talks about the ability of user to control the admittance of
their personal data.
3. It is asserted that the consumers of Raven have not lost the ability to exercise control over
their personal data. They possess the right to make a choice regarding whether they agree
with Raven's new policy. Users retain the option to discontinue using Raven's services by
deleting their account, thereby requiring Raven to delete all data collected from that
specific user. This practice of allowing users to delete their data is considered essential
across various OTT messaging platforms, including Facebook, Twitter, LinkedIn, and
others. By offering this option, users can maintain control over their personal information
and exercise their privacy preferences. This was illustrated by the Delhi High Court in the
Karmanya Singh Sareen Case1 where it’s inter-alia quoted:
¶19. However, we have taken note of the fact that under the Privacy
Policy of “WhatsApp”, the users are given an option to delete their
“WhatsApp” account at any time, in which event, the information of
the users would be deleted from the servers of “WhatsApp”. We are
therefore, of the view that it is always open to the existing users of
1
Karmanaya Singh Sareen v. Union of India, (2016) SCC OnLine Del 5334.
1|Page
“WhatsApp” who do not want their information to be shared with “Facebook” to
opt for deletion of their account.”
4. It is asserted that the chats of users on Raven are encrypted, meaning that the content is
protected and inaccessible to any third party, including Raven, Omega, or their
employees. The encryption ensures that only the sender and intended recipient have
access to the information shared within the chats. This implies that Raven and its
associated entities are unable to access or view the contents of user chats. The encryption
feature provides an additional layer of security and privacy, ensuring that user information
remains beyond the reach of unauthorized parties.
5. It is pointed out that social media websites, such as Facebook, have established the Digital
Advertising Alliance, which provides consumers with the ability to select the types of
data they are willing to share with social media networks like Google and Facebook. This
initiative offers users an additional level of control over their personal and non-personal
data. By utilizing the Digital Advertising Alliance, individuals can make informed choices
about the data they are comfortable sharing and customize their privacy preferences
accordingly. This empowers users to have a greater say in the handling of their personal
information by social media platforms, promoting transparency and control over their
data.
6. It is argued that data pooling or data collection should not automatically be equated with
a breach of data privacy, unless there is sufficient evidence to establish a prima facie case
showing that the consumer data is being used in a manner that exceeds the control of the
users. Mere data collection or pooling, in itself, does not indicate a violation of data
privacy. It is necessary to demonstrate that the collected data is being utilized in a manner
that goes beyond the bounds of user control or consent. Without such evidence, it is
important to approach the situation with caution and avoid presuming a breach of data
privacy solely based on data collection practices.
7. With careful consideration of all the arguments presented, it is contended that there is no
prima facie case indicating a breach of data privacy in the current situation. Based on the
information and submissions provided, there is no compelling evidence to suggest that
the privacy of user data has been compromised. Therefore, it is argued that the allegations
of a data privacy breach lack sufficient merit and fail to establish a strong case in support
of such claims.
2|Page
[2] Data Collection is necessary for innovation.
8. Data collection is necessary in the era of the Internet of Things (hereinafter “IoT) in
order to gain a better understanding of consumer needs and to innovate technology for
enhanced user experiences. In the current landscape, where interconnected devices and
systems generate vast amounts of data, collecting and analyzing this data provides
valuable insights into consumer preferences, behaviors, and patterns. By leveraging this
information, companies can tailor their products and services to meet the evolving needs
of consumers, ultimately enhancing their user experiences.
9. Data has played a significant role in enabling producers to gain a deeper understanding of
what consumers value in the products they purchase. By analyzing data on consumer
preferences, feedback, and usage patterns, producers have been able to gather valuable
insights into buyer expectations and desires. This understanding has greatly influenced
the way products are designed and developed. Armed with data-driven insights, producers
can make informed decisions about product features, functionalities, and improvements
that align with consumer preferences. As a result, the quality of products has increased as
they are better tailored to match the expectations and needs of buyers, as revealed through
the data analysis2.
10. That companies like Tesla Motors have collected herculean amount of personal data from
their car buyers to make the self-driving cars safer by understanding the human behaviour
on Roads3.
11. That eminent Scholars like Waehrer (2016) are cautions against automatically considering
firm data collection as a negative, since in many cases firms invest in data collection to
improve the quality of services, such as web search engines. OECD (2016a) describes the
range of innovations and quality improvements generated by harnessing consumer data.
Most consumers are willing to share large amounts of personal data in return for free
services they value. Consumers tend to object only when their data is actually misused,
something data privacy regulators already take action to address4.
2
Andreas Wiebe, ‘Protection of industrial data –a new property right for the digital economy?’ (2017) 12(1)
Journal of Intellectual Property Law & Practice 67 (Accessed: 09 May 2023),
<https://doi.org/10.1093/jiplp/jpw175>
OECD, ‘Big Data – Bringing Competition Policy to the Digital Era’ (2016) (Accessed: 09 May
2023)<http://www.oecd.org/daf/competition/big-data-bringing-competition-policy-to-the-digital-era.htm>
3
Katie Fehrenbacher, “How Tesla is ushering in the age of the learning car”, FORTUNE (Accessed: 09 May
2023), https://fortune.com/2015/10/16/how-tesla-autopilot-learns/.
4
KENNEDY, J. (2017) The Myth of Data Monopoly: Why Antitrust Concerns About Data Are Overblown, Why
Antitrust Concerns About Data Are Overblown - Itif. Available at: (Accessed: 8th May 2023).
https://www2.itif.org/2017-data-competition.pdf
3|Page
2.1 That data is neither rare, nor unique and substitutable and does not create any
dominance.
12. It is submitted that big data, which encompasses both personal and non-personal data of
users, does not possess significant competitive economic value. This type of data is widely
available in the market and can be resold after use. It lacks uniqueness and does not hold
a monopoly in terms of its availability. Additionally, alternatives and substitutes exist in
the market, further diminishing its exclusivity. As such, the economic value of big data
should not be overstated, as it is a commodity that can be obtained from various sources
and does not possess inherent characteristics that set it apart from similar data offerings.
13. Data, being non-rivalrous, doesn't diminish in availability when consumed. The low
marginal cost of producing and distributing big data, combined with users consistently
leaving digital footprints, has fostered a flourishing industry where consumer data is
resold. This thriving market capitalizes on the abundance of data, enabling businesses to
derive valuable insights and improve their operations, products, and services. The resale
of big data has become a significant aspect of the digital economy5.
14. There are plenty examples of large commercially available data sets. Acxiom has ‘multi-
sourced insight into approximately 700 million consumers worldwide’ with over 1,600
pieces of separate data on each consumer; Datalogix asserts that its data ‘includes almost
every U.S. household’6. Comcast is planning to license TV viewing data collected through
set-top boxes and apps7. Other companies, such as the Oracleowned Bluekai, sell cookie-
based user information online to allow for targeting advertising based on a user’s past
activities or demographics. Bluekai states that it has data on ‘750 million unique users per
month with an average of 10-15 attributes per user’8.
15. That research in computer science has emphasized that by combining a myriad of external
online profiles, external firms can gain huge insights into any one customer 9. Firms can
also use such content as a direct substitute for customer data.
5
Shapiro, C., & Varian, H. R. (1999). The Art of Standards Wars. California Management Review, 41(2), 8–32.
(Accessed: 8th July 2023). https://doi.org/10.2307/41165984
6
Acxiom Corp., 2013 10K Annual Report for the Period Ending March 31, 2013 and Staff of S. Comm. on
Commerce, Sci., and Transp., (Accessed: 8th May 2023).
7
Shalini Ramachandran & Suzanne Vranica, Comcast Seeks to Harness Trove of TV Data, THE WALL STREET
JOURNAL (Accessed: 8th July 2023)., http://www.wsj.com/articles/comcast-seeks-to-harness-trove-of-tv-data-
1445333401.
8
Damiani, J. (2020) Oracle’s BlueKai spilled ‘billions of records’ of web-tracking data, Forbes Available at:
https://www.forbes.com/sites/jessedamiani/2020/06/19/oracles-bluekai-spilled-billions-of-records-of-web-
tracking-data/ (Accessed: 8 May 2023).
9
Arvind Narayanan and Vitaly Shmatikov (no date a) Robust de-anonymization of large sparse datasets.
4|Page
16. That are number of alternative sources of data available to firms, reflecting the extent to
which customers leave multiple digital footprints on the internet. In order to extract value
from big data, firms need to have the right managerial toolkit. The history of the digital
economy offers many examples, like Airbnb, Uber and Tinder, where a simple insight into
customer needs allowed entry into markets where incumbents already had access to big
data.10
17. Therefore, mere data cannot create unchallenged dominance of the any firm11. All
regulators therefore have resisted opposing mergers unless they can identify a clear harm
to competition in a discrete market. As in case of google/ Double Click merger Both the
FTC12 and the European Commission 13approved the merger without conditions.14
2.2 It is not the data but the algorithm.
18. It is respectfully submitted that while many firms collect vast amounts of data, the mere
accumulation of such data does not necessarily give them a significant competitive
advantage. It is the ability of firms to utilize algorithms to analyze the data and generate
insights that provides the real value. For instance, IBM's Watson is being trained to
analyze medical data and help discover new drugs for immuno-oncology15. However,
without Watson's advanced artificial intelligence capabilities, the data would be of little
use.
19. That as per the Economist, in a world of big data, correlations can emerge on their own.
Therefore, simply having access to big data is not enough to gain an edge. Moreover, the
challenge lies in identifying meaningful insights from the data16. As highlighted in a blog
Available at: https://www.cs.utexas.edu/~shmat/shmat_oak08netflix.pdf (Accessed: 8th May 2023).

10
Burton G. Malkiel, The Invisible Digital Hand, THE WALL STREET JOURNAL (Accessed: 8 May 2023),
http://www.wsj.com/articles/the-invisible-digital-hand-1479168252.
11
Anja Lambrecht & Catherine E. Tucker, Can Big Data Protect a Firm From Competition? ANTITRUST
CHRONICLE, CPI, (2017), (Accessed: 8 May 2023). https://www.competitionpolicyinternational.com/wp-
content/uploads/2017/01/CPI-Lambrecht-Tucker.pdf.
12
Vedova, H. and Technology, T.F.O. of (2013) FTC challenges Reed elsevier’s proposed $4.1 billion
acquisition of ChoicePoint, inc.., Federal Trade Commission. Available at: https://www.ftc.gov/news-
events/news/press-releases/2008/09/ftc-challenges-reed-elseviers-proposed-41-billion-acquisition-choicepoint-
inc (Accessed: 8 May 2023).
13
14
Craig Timberg, Google Facing FTC Scrutiny Over Privacy—Yet Again, THE WASHINGTON POST (Accessed:
8 May 2023).https://www.washingtonpost.com/news/the-switch/wp/2016/12/19/google-facingftc-scrutiny-over-
privacy-yet-again/.
15
Economist, T. (ed.) (2017) Will artificial intelligence help to crack Biology?, The Economist. Available at:
https://www.economist.com/science-and-technology/2017/01/07/will-artificial-intelligence-help-to-crack-
biology (Accessed: 08 May 2023).
16
Bureau of Economics et al. (2008) Economics at the FTC: The Google‐DoubleClick Merger, Resale Price
Maintenance, Mortgage Disclosures, and Credit Scoring in Auto Insurance. 600 Pennsylvania Ave. N.W.,
Washington, DC: Federal Trade Commission.
5|Page
post by the Sloan Management Review, many firms have access to big data, but such data
is not inherently objective. Thus, it is vital to distil actionable insights from the data.
Typical machine learning algorithms used to analyse big data identify correlations that
may not necessarily provide causal insights. Therefore, it is not the data alone that creates
value but the algorithms created by firms that can generate fruitful information from the
data. It is this ability to utilize data that gives firms a competitive advantage. In light of
the foregoing, it is respectfully submitted that the value of data lies not in its accumulation,
but in the ability of firms to analyze it effectively and derive actionable insights through
advanced algorithms.
20. It is submitted that even if the economy value of the data collected by the firms is huge.
It doesn’t give much competitive edge to firm.” It the data algorithms which create niche
for firms. For e.g., IBM is training its cognitive computing system, Watson, to help
analyze medical information, including the discovery of new drugs for immuno- To do
this, it needs lots of data. But the data would be much less valuable without Watson’s
sophisticated artificial intelligence capabilities.
21. The CCI in Jaadhu/ Jio Merger (Facebook Jio)17 acknowledged the fact that the
innovation of AI and machine learning helps the company in creating valuable data.
22. That the Economist recently pointed out that ‘in a world of big data the correlations
surface almost by themselves’, and a Sloan Management Review blog post emphasized
that while many firms have access to big data, such data is not ’objective’. since the
difficulty lies in distilling ‘true’ actionable insights from the data. Similarly, typical
machine learning algorithms used to analyze big data identify correlations that may not
necessarily offer causal and therefore actionable managerial insights.
23. Therefore, it is not the data in itself that creates value, but the algorithm created by the
firms which are able to distil fruitful information from the big data. It is this ability of the
firm to use that data in a fruitful manner which gives it competitive edge.
24. That Antitrust law is not meant to protect weaker companies from the consequences of
fair competition. The mere possession of large amounts of data is never a cause for
concern. And, in most cases, neither is using this data to produce a better product. For
e.g., the case of King Digital Entertainment created Candy Crush Saga without much data
about gamers in a data sensitive gaming industry. By 2014, 93 million people were playing
17
Competition Commission of India, Order: Notice under Section 6(2) of the Competition Act, 2002 filed by
Jaadhu Holdings LLC, (June 24, 2020), http://164.100.58.95/sites/default/files/Notice_order_document/order-
747.pdf
6|Page
Candy Crush Saga for more than 1 billion times a day 18. The case of rise of Snapchat,
WhatsApp, etc provide a similar story.
25. That even if the possession of large amounts of data were necessary for an entrant to
compete successfully, this would not necessarily constitute an unfair competitive
advantage. Many industries have high entry costs; this does not mean that Ford and
Daimler have an unfair advantage just because companies must build an expensive factory
before they can sell a single car.
[3] Different Law.

26. That data privacy is not a concern under competition law. The legislature has already
addressed data privacy concerns through the enactment of the Information Technology Act
2000, which includes Sections 43A, 72, and 72A. Additionally, the upcoming data
protection bill specifically outlines the obligations of data fiduciaries in Chapter II, Sections
4, 5, and 6.
27. Section 5 outlines the requirement for every person processing personal data to do so in a
fair and reasonable manner that respects the privacy of the data principal. This processing
must be for a purpose that the data principal has consented to or is incidental to that purpose.
Finally, section 6 stipulates that personal data can only be collected to the extent that is
necessary for the processing purpose.
28. A Plain reading of these sections shows that personal data can be collected if it is necessary
for processing that is beneficial to consumers. If at all any breach of data privacy is done
by any Fiduciary, it can be punished by the virtue of the same act.
29. It is contented that the issue of data privacy in relation to the sharing of data by a subsidiary
company with its parent company is currently sub judice before the Hon’ble Supreme Court
of India in the case of Karmanya Singh Sareen and Ors. v. Union of India and Ors. The
Supreme Court has yet to decide whether WhatsApp's policy of sharing user data with
Facebook for better user experience constitutes a breach of data privacy. Until such time as
a decision is rendered, any claim of anti-competitive behaviour arising from such data
sharing is premature.
30. That this commission should adhere to the principal of comity of court , as espoused in the
case of Competition Commission of India v. Bharti Airtel Limited and Ors.19. This
decision emphasized the need to maintain harmony between decisions of different
18
The Guardian, Why is Candy Crush Saga so popular, ( Accessed : April 18, 2023),
http://www.theguardian.com/technology/2014/mar/26/candy-crush-saga-king-why-popular.
19
Competition Commission of India v. Bharti Airtel Limited and Ors., (2019) 2 SCC 521
7|Page
authorities on the same issue, and held that the Commission should only exercise
jurisdiction after the proceedings before the sectoral regulator had concluded and attained
finality.
31. Considering the Supreme Court's role as the highest court and ultimate interpreter of law,
it is advisable to await its decision regarding data privacy matters before making any
determinations on potential anti-competitive implications arising from data sharing. The
Commission should carefully balance its actions, taking into account the jurisdiction of
other relevant bodies. Therefore, it is argued that the intervention of Commission in the
case of WhatsApp's 2021 policy, as exemplified in the case of In Re: Updated Terms of
Service and Privacy Policy for WhatsApp Users20, does not set a favorable precedent in
the current context.
32. It should be noted that in a review of this order, the Supreme Court did not delve into the
merits of the argument. Instead, it merely quoted that the order under Section 26(1) of the
Act21 is regulatory in nature and only directs an investigation, without imposing any penalty
and thereby implying that it will look into the merits of the case only when a final order has
been passed by the CCI. As it may find the nothing in the investigation and close it under
sec 26(3)22. Therefore, we argue that the impugned order is not a sound precedent, as it has
not attained finality and has not faced judicial scrutiny.
33. It is argued that the German competition authority's decision in 2019 to treat Facebook's
data protection practices as an abuse of dominance is flawed23. The decision was based on
a three-year investigation and was the first instance of a competition authority treating data
protection as a competition concern. However, the German Supreme Court later modified
the theory of harm, based on the exploitation of users and exclusion of competitors in the
market for advertisements, rather than solely on data protection violations. Additionally, a
regional court has referred the question of Facebook's data collection legality to the ECJ,
indicating a lack of clarity on the interface between data protection and competition law24.
20
In Re: Whatsapp LLC (2021) SCC OnLine CCI 19
21
The Competition Act, 2002, § 26 (1), No. 12, Acts of Parliament, 2002
22
The Competition Act, 2002, § 26(3), No. 12, Acts of Parliament, 2002
23
Kathuria, V. (2023) Why Data Protection should not be an antitrust concern, ORF. Available at:
https://www.orfonline.org/expert-speak/why-data-protection-should-not-be-antitrust-concern/ (Accessed: 8th
May 2023).
24
Christoph Ritzer (DE), T.S. (2020) Germany’s Federal Supreme Court provisionally confirms Facebook’s use
of personal data is alleged abuse of dominant market position, Data Protection Report.
https://www.dataprotectionreport.com/2020/07/germanys-federal-supreme-court-provisionally-confirms
facebooks-use-of-personal-data-is-alleged-abuse-of-dominant-market-position/ (Accessed: 8th May 2023).
8|Page
34. It is argued that the existing data privacy laws are comprehensive enough to address any
concerns pertaining to data privacy of consumers, and therefore, regulatory bodies such as
CCW should refrain from venturing into the domain of identifying data privacy issues that
fall under the purview of data protection authorities.
35. That the antitrust regulators worldwide have thus far avoided explicitly including data
privacy issues within their purview. For instance, the CCI in cases such as Harshita
Chawla25, Vinod Kumar Gupta26, and the Jaadu/Jio merger27 chose not to address data
privacy concerns. Similarly, the FTC and EC did not directly incorporate data privacy as a
segment of antitrust regulations in cases like the Google/Double Click merger28 and the
TomTom/Tele 29Atlas merger.
36. Therefore, CCW should refrain from taking data privacy within the ambit of its jurisdiction.
ISSUE 2: WHETHER OMEGA ABUSED ITS DOMINANT POSITION?
Section 4 of the Competition Act, 2002 disallows abuse of dominant position in the market but
does not prohibit dominance per se. This means that an enterprise is permitted to engage in any
anti-competitive act until the point it becomes dominant. It has been stated by the CCI that
when none of the parties hold a dominant position, it is not required to go into the allegation of
abuse of dominance under Section 4 of the Competition Act30. Primarily, there are three stages
to hold the enterprise responsible for abusing its dominant position31:
[1] The first stage is defining the relevant market32.
[2] The second stage is determining whether the enterprise is dominant in that relevant market.
[3] The third stage is assessing whether the act amounts to abuse of its dominant position.
[1] What Is the Relevant Market In The Present Case?
25
Harshita Chawla v. WhatsApp Inc., (2020) SCC OnLine CCI 32.
26
Vinod Kumar Gupta v. Whatsapp Inc., (2017) SCC OnLine CCI 32.
27
Competition Commission of India, Order: Notice under Section 6(2) of the Competition Act, 2002 filed by
Jaadhu Holdings LLC, (June 24, 2020), http://164.100.58.95/sites/default/files/Notice_order_document/order-
747.pdf
28
Bureau of Economics et al. (2008) Economics at the FTC: The Google‐DoubleClick Merger, Resale Price
Maintenance, Mortgage Disclosures, and Credit Scoring in Auto Insurance. 600 Pennsylvania Ave. N.W.,
Washington, DC: Federal Trade Commission.
29
Case No COMP/M.4854 - TOMTOM/TELE ATLAS.
30
Mohit Manglani v. Flipkart India (P) Ltd., (2015) SCC OnLine CCI 61.
31
D.P. Mittal, Competition Law And Practice 334 (Taxmann Publications Private Limited 2011).
32
Competition Act, 2002, § 2(r), No. 12, Acts of Parliament, 2003 (India).
9|Page
37. Determination of relevant market is sine-qua-non33 for the determination of dominant
position and contravention of Section 4 of the Act. Section 2(r) read with Section 19(5) of
the Act requires determination of relevant market with due regard to the relevant
geographic market and relevant product market34. The relevant product market includes all
products that are considered as interchangeable or substitutable by the consumers35. Further
Section 2(s) defines relevant geographic market 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 homogeneous and can be distinguished from the conditions
prevailing in the neighbouring areas36.
38. It becomes necessary to define relevant market in competition cases because competition
cannot exist in abstract37. The relevant geographic market would include the area in which
the conditions of demand and supply are distinctly homogenous, and can be distinguished
from the neighbouring area38.
39. It is humbly contended that the delineation of a relevant market is done with reference to
relevant geographic market and relevant product market in terms of § 19(5), keeping in
view the factors mentioned under § 19(6) and § 19(7). 1 Market definition is a tool used to
identify and define the boundaries between the firms and establish the framework within
which competition policy is to be applied. In light of this, it is submitted that the relevant
market of the companies in question is as follows: Omega’s Relevant Market [2.1]
Instapic’s Relevant Market [2.2] WeMessages’s Relevant Market [2.3] Raven pvt. Ltd.’s
Relevant Market (hereinafter “Raven”).
1.1. Omega’s relevant market

40. Market refers to where buyers and sellers have access to each other to enter into a
transaction. A relevant market is required to be delineated to identify the boundaries within
which effective competition takes place under competitive constraints 39. The relevant
market may be determined with reference to the relevant product market, the relevant
geographic market, or both40.
33
CCI v. Co-ordination Committee of Artists and Technicians of W.B. Film and Television, AIR 2017 SC 1449.
34
Competition Act, 2002 § 2, No. 12, Acts of Parliament, 2003 (India).
35
Competition Act, 2002, § 2 (t), No. 12, Acts of Parliament, 2003 (India).
36
Id.
37
Lennart Ritter Et. Al., W. David Braun, European Competition Law: A Practitioner's Guide, (3rd ed. 2005).
38
Competition Act, 2002 § 2(s), No. 12, Acts of Parliament, 2003 (India).
39
CCI v. Co-ordination Committee of Artists and Technicians of WB Film and Television, AIR 2017 SC 1449.
40
Sunil Bansal v. Jaiprakash Associates Ltd., (2015) Comp LR 1009 (CCI).
10 | P a g e
41. The relevant product market encompasses all products (goods or services) that are capable
of being interchangeable or substitutable in terms of consumption owing to similar
characteristics, pricing, or intended usage. A product market enables demand
substitutability wherein products in the market are interchangeable in terms of utility41.
42. The Commission must have due regard to factors related to the service such as different
features of the service or end use, consumer preferences, etc42. In the matter at hand Omega
as represented by Faceview deals in thought and photo sharing and messaging platform43.
And such dealings take place all over the globe44.
1.2. Instapic’s relevant market
43. Instapic is a global social media platform45 Omega acquired Instapic in 2012 after it started
being considered as an alternative to Faceview46. It started becoming quite popular globally
from a market share of 12% in 2009.
44. The relevant market of Instapic is a social media platform dealing in different messaging
services.
1.3. WeMessage’s relevant market
45. WeMessage is an American social media platform that deals with phone number-based
internet messaging services47. WeMessage has stickers, Group chats, easily forwardable
messages, sharing of stories, ability to voice call and video call as features, all with an
exceedingly attractive, yet minimalist user interface. WeMessage being a smaller, more
intimate platform attracted even those who had yet been critical of social media as invasive
of privacy. By December 2014, WeMessage’s estimated valuation stood at 1.5 billion
dollars.
46. Therefore, WeMessage’s Relevant Market is social media platform dealing in different
messaging services.
1.4. Raven’s relevant market
41
42
The Competition Act, 2002, No. 12, Acts of Parliament, 2002 (India).; Sai Wardha Power Company Ltd. v.
Western Coalfields Ltd., 2014 Comp LR 265.
43
Moot Proposition, ¶ 3.
44
45
46
47
11 | P a g e
47. Raven is a Wadiyan social media platform. Raven’s USP is that it requires neither a phone
number nor an email address for a user to sign up - instead, the application generates a
random user id for each consumer. Raven provides complete end-to-end encrypted
messaging services as its default setting (without any meta-data)48. Raven attracted a small
but vocal section of society called “Digital Wadiya”49.
48. Therefore, it is contended that although Raven attracts particulary a small section of the
society but the relevant market is still social media platform dealing in messaging services.
49. In Competition Commission of India v. Coordination Committee of Artists and Technicians
of W.B. Film and Television, the apex court initially delineated a relevant market in context
of a cartelisation issue, but after a clarification order50 it was stated that “the delineation of
the relevant market is not a mandatory pre-condition for determination of violations of
Section 3, particularly where the agreement/conduct of the parties falls under the statutory
presumptions set out in Section 3.”
[2] Omega Has Not Abused Its Dominant Position.
50. It is respectfully submitted that assuming, arguendo, that OMEGA holds a dominant
position in the market, there is no evidence to suggest that it has engaged in any abusive
conduct jeopardizing the competitiveness of the market.
51. That in order to make a case for abuse of dominance it is necessary to show: “If an
undertaking in a dominant position strengthens such position in such a way that the degree
of dominance reached substantially fetters competition, i.e., that, only those undertakings
remain in the market whose behavior depends on the dominant one” 51.
52. The precedent in case of abuse of dominance seems to illustrate that concrete evidence of
abusive behavior sine qua non for proving abuse52. All regulators therefore have resisted
opposing mergers unless they can identify a clear harm to competition in a discrete manner.
48
49
50
Khaitan & Co., SC clarifies: Delineation of relevant market not mandatory for all allegations of anti-competitive
agreements, (Nov. 5, 2022, 10:07 AM) https://www.khaitanco.com/thought-leadership/SC-clarifies-delineation-
ofrelevant-market-not-mandatory-for-all-allegations-of%20anti-competitive-agreements.
51
Europemballage Corporation and Continental Can Company Inc. v Commission of the European Communities
8 [1973] EUECJ C-6/72.
52
Vedova, H. and Technology, T.F.O. of (2013) FTC challenges Reed elsevier’s proposed $4.1 billion acquisition
of ChoicePoint, inc., Federal Trade Commission. Available at: https://www.ftc.gov/news-events/news/press-
releases/2008/09/ftc-challenges-reed-elseviers-proposed-41-billion-acquisition-choicepoint-inc (Accessed: 10
May 2023).
12 | P a g e
As in case of google/ Double Click merger Both the FTC and the European Commission
approved the merger without conditions53.
53. In assessing the establishment of abuse of dominance, the Raghavan committee's report
presents key questions that must be addressed. These questions include whether the alleged
conduct would deter or impede entry into the market, diminish the incentives of the firm
and its competitors to engage in aggressive competition, provide the dominant firm with
the ability to raise prices, hinder investments in research and innovation, and ultimately,
whether consumers benefit from lower prices and/or increased availability of products and
services. Considering the case of the Raven acquisition, in light of the report it is contended
that no case of abuse is made.
2.1. Free entry of competing firm

54. It is contended that the acquisition of Raven by Omega does not hinder the entry of other
firms into the social media messaging platforms. It is noted that in a zero-price market,
advertising is the main source of revenue for companies like Omega. While the market is
data-driven, the possession of data does not provide an insurmountable competitive
advantage, as data is non-rivalrous and frequently bought and sold. As such, the possession
of data by Omega does not preclude other rivals from acquiring it as well54.
55. It is contended that Omega may have gained an edge in the market by accumulating a
substantial amount of data through its scale and network built over the past 19 years.
However, it is argued that competition policy should not aim to create a completely level
playing field for all companies at all times, particularly when companies have benefited
from advantages created through their own resources, which other firms are free to
replicate.
2.2. No exit barrier for consumer

56. It is contended That Raven doesn’t have any exit barrier, it is free of cost like any other
rival messaging app and provides facility of sharing messages, photo and video sharing
which is similar in nature to any other provider.
57. The EC in Facebook/WhatsApp merger 55case has made clear that the cost of moving out
from one social media messaging app to another is minimal. “The Commission has not
found any evidence suggesting that data portability issues would constitute a significant
53
54
Anja Lambrecht and Catherine E. Tucker, Can Big Data Protect a Firm From Competition?, ANTITRUST
CHRONICLE 1, NO. 12 (January 2017).
55
Case No COMP/M.7217 - FACEBOOK/ WHATSAPP
13 | P a g e
barrier to consumers' switching in the case of consumer communications apps. Indeed,
communication via apps tends to consist to a significant extent of short, spontaneous chats,
which do not necessarily carry long-term value for consumers”56.
58. Finally, the contact list of a Raven user can be ported: a competing app would have access
to it, subject to a user's authorisation in lines with the finding of EU the impugned judgment.
59. Therefore, there is significant multi-homing by the consumers of social media messaging
like Raven making it even easier for them to switch in case of any dissatisfaction, which
has been identified by both FTC in FB/WhatsApp merger57 case and by CCI in Harshita
Chawla Case58.
2.3. Advantage of data is short lived and driven by tech algorithm

60. Data-driven companies operate in dynamic and innovative industries, making their
advantages short-lived and vulnerable to disruption by new competitors with different
business models or technology. Examples include MySpace and Friendster losing to
Facebook, AltaVista and Lycos losing to Google, and Blackberry and Nokia being
displaced by the iPhone and Android. The history of the information technology industry
demonstrates quasi-competitive markets succeeding each other as underlying technology
changes, with new companies able to raise capital and pose a constant threat to incumbents.
Large amounts of data do not guarantee market power, and the possession of data cannot
prevent a company from being displaced by a better product 59.
61. The ability of users to switch to a competing product at low cost or even for free makes
significant switches possible when the difference in quality becomes large enough. Thus,
companies that offer the best products deserve to remain market leaders, whether they are
incumbents or challengers60.
62. It is contended that as illustrated in para 2.1 Collecting vast amounts of data alone does not
give firms a significant competitive advantage61. The real value lies in the ability to analyze
the data using advanced algorithms and derive actionable insights. Access to big data is not
56
Ibid.
57
Id.
58
Harshita Chawla v. WhatsApp Inc. and others COMPETITION COMMISSION OF INDIA (2020)
ANTITRUST. Available at: https://cci.gov.in/antitrust/orders/details/118/0 (Accessed: 03 May 2023).
59
Antitrust Concerns About Data Are Overblown - Itif. Available at: https://www2.itif.org/2017-data-
competition.pdf (Accessed: March 2017).
60
Adam Roberts, “Changing Lanes,” The Economist, The World in 2017, 2016, 73,
http://www.theworldin.com/edition/2017/article/12636/changing-lanes
61
Antitrust Concerns About Data Are Overblown - Itif. Available at: https://www2.itif.org/2017-data-
competition.pdf (Accessed: March 2017).
14 | P a g e
enough; meaningful correlations and insights must be identified. Machine learning
algorithms may reveal correlations but not necessarily causal insights. It is the firm's ability
to effectively analyze data and generate fruitful information that provides a competitive
edge62.
2.4. Economy of scale is good for business and consumer welfare
63. It is contended that the competition regulators like this commission should refrain from
controlling the network effect or economy of scale for the data driven markets like that of
omega. Economies of scale and network effects both increase consumer welfare by
lowering costs and increasing value. And they do not necessarily ensure lasting market
power.
64. Data-intensive companies and information-based industries often benefit from bigness,
which in turn delivers significant value to both consumers and society. Unlike industries
where production costs increase with higher production, in information-based industries,
production costs decrease dramatically to a point where the marginal cost is almost zero 63.
This enables these companies to lower the price they charge users, at least until they attain
a certain level of volume. Although some people worry that as companies gain more access
to information, they will establish a dominant position, this is not necessarily the case.
65. On the demand side, network effects also contribute to the value of these companies, as the
value to each user increases as more users use the same service. The first Harvard students
to use Facebook benefited from it, but this benefit increased dramatically as the first billion
users joined. While these effects may trail off after a certain point, the value of Facebook
would be diminished if half of a user's friends were still on MySpace and not Facebook.
2.5. Consumer benefit from data driven innovation and priotize it.
66. It is contended that as argued by Geoffrey Manne and R. Ben Sperry, the concern over a
single company amassing a large concentration of information is seemingly insignificant
for individual consumers64. In fact, the collection of data from a larger consumer base is
often linked to increasing network effects, which are more likely to result in improvements
in product quality rather than deteriorations65. The FTC in Microsoft/LinkedIn Merger and
62
Burton G. Malkiel, The Invisible Digital Hand, THE WALL STREET JOURNAL (November 28, 2016),
http://www.wsj.com/articles/the-invisible-digital-hand-1479168252.
63
E.g. Facebook.
64
Manne and Sperry, The Problems and Perils of Bootstrapping Privacy and Data into an Antitrust Framework.
65
James Manyika et al., Open Data: Unlocking Innovation and Performance with Liquid Information, (McKinsey
Global Institute, October 2013),
http://www.mckinsey.com/~/media/McKinsey/Business%20Functions/McKinsey%20Digital/Our%20Insights/O
pen%20data%20Unlocking%20innovation%20and%20performance%20with%20liquid%20i
15 | P a g e
CCI in Jaadu/Jio merger, EU in Whatsapp/Facebook Merger and US chamber of commerce
Foundation have recognized that data drives are key factor in driving the innovation in era
of internet of things66.
67. In the case at hand Consumer concern of privacy is misplaced i.e., their preferences often
prioritize convenience and functionality over privacy concerns67. Despite expressing a
desire for more privacy, individuals demonstrate a willingness to continue using platforms
with limited privacy protection. This implies that privacy concerns alone may not
significantly influence consumer choices or outweigh the perceived benefits of services that
prioritize other features68.
68. It is contended that the value provided by these services tends to overshadow privacy
concerns. This behaviour is akin to a consumer preferring economy class offers for better
value for money, even though business class flights are better in comfort. Similarly,
consumer behaviour regarding social media platforms like WhatsApp or Raven is
influenced by a similar perspective.
69. The exchange of data for services provided by zero-price firms, such as Raven and
Facebook, increases the value received by consumers. By offering their data as a form of
currency, users can access various platforms without having to pay separately for each one.
70. This flexibility in data usage enables users to engage with multiple platforms
simultaneously. This consumer behaviour, characterized by the willingness to provide data,
compels zero-price markets to prioritize product quality over pricing. Consequently,
competition in these markets is primarily based on technological advancements rather than
pricing strategies, which creates a more level playing field for competitors.
71. Therefore, it is submitted that this dynamic can have a progressive effect. The companies
may create ability to charge higher prices to users with inelastic demand of stricter data
privacy but that is not the model of Omega and Raven, lower-income consumers, who are
more responsive to price changes, can benefit from price discrimination. Overall, this
nformation/MGI_Open_data_FullReport_Oct2013.ashx. Another McKinsey study estimated that in 2010, a

range of free Internet services increased the social surplus within the United States and the European Union
by €120 billion, 85 percent of which went to consumers. IAB Europe and McKinsey, Consumers Driving the
Digital Uptake: The Economic Value of Online Advertising-Based Services for Consumers (Brussels: IAB
Europe, (September 2010),
https://www.youronlinechoices.com/white_paper_consumers_driving_the_digital_uptake.pdf.
66
USCCF, The Future of Data -Driven Innovation,
https://www.uschamberfoundation.org/sites/default/files/The%20Future%20of%20Data-
Driven%20Innovation.pdf.
67
Manne and Sperry, The Problems and Perils of Bootstrapping Privacy and Data into an Antitrust Framework.
68
Pew Research Center, Public Perceptions of Privacy and Security in the Post-Snowden Era, (November 12,
2014)
16 | P a g e
arrangement allows for a fairer and more efficient allocation of resources within the zero-
price market ecosystem69.

COMBINATION TO RE-ASSERT AAEC AFTER THE LAPSE OF 1 YEAR?
It is most humbly submitted before the Hon’ble Competition Commission of Wadiya
(hereinafter “CCW”) that CCW has acted beyond its jurisdiction by re-opening the
combination after 2 years of its approval. The same shall be proved in the foregoing arguments
in seriatim by establishing that [1] CCW cannot inquire into a combination after the lapse of
1-year statutory period, [2] CCW cannot re-assert any adverse impact on the competition after
approval.
[1] CCW cannot inquire the matter after the elapse of 1-year statutory period.
72. It is most humbly submitted before the Hon’ble Commission that the proviso to Section
20(1) of the Competition Act, 2002 (hereinafter “Act”) explicitly lays down that the
Commission shall not initiate any inquiry under this subsection after the expiry of one year
from the date on which such combination has taken effect.
73. The counsel would like to bring to the Commission’s kind attention that Omega acquired
Paper Sky and AmbroxWadiya in November 2021 which was approved by the Commission
on the 31st day of January, 2022 upon notification of the same. After the new privacy policy
for Raven was rolled-out, DigitalWadiya reached out to the Competition Commission of
Wadiya (hereinafter “CCW”) under Section 20 of the Act on the 25th day of February,
2023, which is more than 2 years after the date on which the Combination was approved
by CCW.
74. This stands in violation to the proviso to Section 20(1) since at this stage, the combination
has become time-barred and hence CCW cannot initiate an inquiry into the same.
75. In the case of Nathi Devi v. Radha Devi Gupta70, it was held by the Hon’ble Supreme Court
that:
“The interpretation function of the Court is to discover the true legislative intent, it is
trite that in interpreting a statute the Court must, if the words are clear, plain,
69
The White House, Big Data and Differential Pricing, (February 2015),
https://obamawhitehouse.archives.gov/sites/default/files/whitehouse_files/docs/Big_Data_Report_None
mbargo_v2.pdf.
70
Nathi Devi v. Radha Devi Gupta, AIR 2005 SC 648
17 | P a g e
unambiguous and reasonably susceptible to only one meaning, give to the words that
meaning, irrespective of the consequences. Those words must be expounded in their
natural and ordinary sense. When a language is plain and unambiguous and admits of
only one meaning no question of construction of statute arises, for the Act speaks for
itself. Courts are not concerned with the policy involved or that the results are injurious
or otherwise, which may follow from giving effect to the language used. If the words used
are capable of one construction only then it would not be open to the Courts to adopt any
other hypothetical construction on the ground that such construction is more consistent
with the alleged object and policy of the Act.”
76. Based on the provided statement, it appears that the language of the proviso in Section
20(1) explicitly states that the initiation of proceedings is prohibited after one year from the
effective date of the combination. The statement suggests that the wording of the provision
is straightforward and leaves no room for alternative interpretations. As a result, the judicial
adjudication by authorities should adhere to the plain meaning of the provision without
deviating from its intended interpretation. Furthermore, the statement emphasizes that the
Act, which includes Section 20(1), was enacted by the legislature after careful consideration
and research. Going against the clear language of the provision would undermine the
purpose and intention of the legislature when passing the Act.
77. Therefore, the statement asserts that the language of Section 20(1) is unambiguous, and the
courts should strictly interpret it as intended by the legislature, in order to uphold the
purpose and effectiveness of the Act. Hence, it is submitted that the Commission should
not be given the authority to initiate inquiry into a Combination post 1-year of its
effectuation.
[2] CCW cannot re-assert adverse impact on the competition after approval.
78. It is respectfully submitted to the Hon'ble Commission that there is no power to revoke
approval or direct notification of a completed transaction. The Commission's approval
power does not include the ability to revoke the approval. The Act's system does not foresee
the enforcement of a revocation order, and the Commission's own guidance notes to Form
I notice do not acknowledge the authority of revocation.
79. The Commission should not serve as a forum for resolving contractual disputes between
private parties as the objective of the Act is to promote and sustain competition in the
market and not to serve as a regulator for private entities. It is argued that the Share
Purchase Agreement (hereinafter “SPA”) dated March 27, 2021 was signed between
18 | P a g e
private parties and Omega was not a party to that agreement. Based on this, it is contended
that the SPA does not qualify as a "combination" concerning Omega. Consequently, it is
claimed that Omega was not obligated to notify the Commission about the SPA as part of
the combination notification process.
80. Moreover, in the current situation, it appears that an inquiry has been initiated by the CCW
based on the SPA. On behalf of Omega, it is being argued that the SPA was a result of the
acquisition of Raven by Paper Sky and AmbroxWadiya. Since the acquisition constituted
less than 10% of the shares, it is being asserted that it should be considered an investment
rather than a notifiable transaction to the CCW71. Furthermore, it is stated that Omega was
not a party to the SPA, and therefore, it is being contended that the CCW does not have the
authority to revoke its previous order based on a flawed revelation.
81. In accordance with Section 20(4) of the Act, the review of a notified combination involves
an ex-ante assessment of the combination. It is important to note that all information
deemed "material" to this assessment should be disclosed in the Notification. In line with
this requirement, Omega has duly disclosed any facts that are relevant to the Commission's
assessment of whether the notified combination is likely to have an appreciable adverse
effect on competition.
82. On the 12th day of October in 2007, Section 37, which earlier granted the Commission the
power of review of its own order, was omitted from the Act. According to the Black’s Law
Dictionary, “Omitted” means “Something that has been left out or not included (either
deliberately or through neglect)”. The sole purpose of omitting the provision from the law
was to leave it out, in this context, deliberately as it no longer serves the purpose.
83. In Rajeev Hitendra Pathak v. Achyut Kashinath Karekar72, It was established that
Tribunals are creatures of the statute and acquire their power from the express provisions
of the act, and that the Forums and Commissions have no power of review and cannot
exercise powers not expressly granted by the statute.
84. Further, in Haryana State Industrial Development Corporation Ltd. v. Mawasi73, it was
established that a power of review is a creature of statute, and that no Court, quasi-judicial
body, or administrative authority can review its judgement, order, or decision unless it is
legally empowered to do so.
71
The Competition Commission of India (Procedure in regard to the transaction of business relating to
combinations) Regulations, 2011, Explanation, Article 1, No. 3, Regulations of the Competition Commission of
India, 2011 (India).
72
Rajeev Hitendra Pathak v. Achyut Kashinath Karekar, (2011) 9 SCC 541.
73
Haryana State Industrial Development Corporation Ltd. v. Mawasi, (2012) 7 SCC 200.
19 | P a g e
85. Further, attention is invited to Section 38 of the Act conferring the CCI with the power to
rectify any mistake apparent from the record in the orders passed by it, stipulating that
while rectifying the mistakes, the order shall not amend any substantial part of the order
and here from, it is contended that in the present case, the CCW is inquiring into the
combination which was once approved by it. Meaning thereby, the approval of the
combination is the substantial part of the order of CCW and in accordance with the above-
stated Section, the commission is strictly prohibited to amend this part.
86. In Kapra Mazdoor Ekta Union v. Birla Cotton Spinning and Weaving Mills Ltd.74, the
Court laid down that in the context of a Court or a quasi-judicial authority with jurisdiction
to adjudicate on merits, its judgement or order can be reviewed on merit only if the Court
or the quasi-judicial authority is vested with the power of review by express provision or
by necessary implication, and it is only procedural illegality that goes to the heart of the
matter and invalidates the proceeding itself, and thus the order passed, that can be reviewed.
87. Further, in Patel Narshi Thakershi v. Shri Pradyumansinghji75, a clear distinction between
procedural review and substantive review has been laid down. A procedural review is one
in which a court or Tribunal sets aside a palpably erroneous order passed under a
misapprehension by it, either inherent or implied, and a review on merits is when the error
sought to be corrected is one of law and is apparent on the face of the record. It is contended
that re-examining an already approved combination solely on the basis of a newly
discovered and irrelevant fact constitutes a review on the merits of the case, rather than a
procedural review. It is argued that the Commission's authority to review such matters is
limited. Once a combination has received approval, the subsequent review should be
restricted to procedural considerations. Any attempt to delve into the substantive aspects of
the combination goes beyond the scope of the Commission's jurisdiction.
88. Prior to the modification that went into effect on October 12, 2007, creating the
Competition Appellate Tribunal (CompAT), CCI's powers were judicial in nature. With the
foundation of the CompAT, however, the functions exercised by CCI are merely
administrative. Therefore, it can be asserted that the legislature did not find it necessary to
place a power of review in the CCI exerting administrative powers exclusively. In this
context Brahm Dutt v. Union of India76 is cited.
74
Kapra Mazdoor Ekta Union v. Birla Cotton Spinning and Weaving Mills Ltd. 74 (2005) 13 SCC 777.
75
Narshi Thakershi v. Pradyumansinghji, AIR 1970 SC 1273.
76
Brahm Dutt v. Union of India, (2005) 2 SCC 431.
20 | P a g e
89. In light of the principles of justice and fairness, it is respectfully submitted that declaring
the inquiry as beyond the jurisdiction of the Commission would be in the best interest.
Investigations against a public company have the potential to significantly impact its
creditworthiness and competitive position in the business world, irrespective of the ultimate
outcome of the investigation. Even if the company is ultimately exonerated and given a
character certificate, its reputation and future prospects may still suffer as a consequence.
Establishing a precedent that respects these concerns is crucial for future generations of
case laws to ensure a fair and balanced approach in similar circumstances.
ISSUE 4- WHETHER INCLUSION OF OMEGA AS A PARTY TO THE CASE IS

VALID?
It is humbly contended that Omega is a pioneer social media and a market leader in the market
for social networking in Wadiya77. It acquired Ambrox and Papersky in November 202178. It
can be inferred from the facts that Omega is the parent company of Ambrox and Papersky. It
is contended that Omega is not liable for acts of Ambrox and Papersky as; Omega exercises no
control over its subsidiary’s actions [1] and the parent company liability test is not satisfied [2].
[1] Omega Exercises No Control Over Its Subsidiaries’actions.
90. It is contended that Omega in spite of being the parent company is not liable to be a party
to this case as each case must be decided on its merits in such a case, it may not be possible
to put in a strait jacket of judicial definition as to when a subsidiary company will really be
treated as a branch, or an agent or a trustee of the holding company and each case must
necessarily turn on its own facts and circumstances such as profits of subsidiary company
being treated as those of the parent company79.
91. It has been observed that where a subsidiary is wholly owned by the principal company
which has a pervasive control over it and the former acts as the hand and voice of the latter,
the subsidiary would be nothing but an instrumentality of the principal company and the
parent company cannot claim the separate legal entity defense80. In the case at hand, Omega,
77
78
Moot Proposition,¶ 16.
79
Free Wheel (India) Limited v. Dr. Veda Mitra & Another, AIR 1969 Delhi 258.
80
21 | P a g e
a social networking platform has acquired Ambrox and Papersky and is a parent company81.
However, Ambrox and Papersky being individual legal entities in the Wadiya market, has
its own set of board of directors/management independent of Omega.
92. Parent and subsidiary are separate legal entities, each with responsibility for their own
separate activities, the involvement of a parent company in the affairs of the subsidiary is
the key factor that needs to be determined to establish the extent of liability82. How each
company is managed and who is in control of its affairs will be important elements in
assuming whether the parent is liable for the actions of the subsidiary83.
93. In the present case, Omega, Ambrox and Papersky are separate legal entities each having
their own directors and state of affairs. Omega doesn’t have much say in the functioning of
Ambrox and Papersky due to the present of the latter’s directors. Now, Ambrox and
Papersky signed an agreement with Raven in which Omega had no say. Ambrox and
Papersky’s actions were independent of Omega and thereby, the latter shouldn’t be a party
in this case.
[2] The Parent Company Liability Test Is Not Satisfied.
94. Referring to the case laws of Indian84 as well as of foreign85 jurisdiction, it can be
established that the test which lays down the extent of the liability of the parent company
is as follows: (i) the parent company should have direct and persuasive control over its
subsidiary (ii) material involvement/fault of the parent company.
95. According to the EU jurisprudence, Single Economic Entity (‘SEE’) is formed when the
parent company exercises direct control over the subsidiary and in such a case both of them
become liable for the anti-competitive conduct. There are two steps to find a SEE, first, a
competition authority would have to demonstrate that the parent company can exercise
decisive influence over the conduct of the subsidiary. Secondly, it would demonstrate that
the parent company actually exercised such decisive influence86.
81
Moot Proposition, ¶16.
82
AAA v. Unilever plc, [2018] EWCA Civ 1532.
83
Iain Butler, A guide to parent companies and their subsidiaries: how far does responsibility go?, ROYDS
WITHY KING (February 12, 2022, 6: 02 PM)
84
85
Imperial Chemicals Industries Ltd. v. Commission, C-48/69 (1972) ECR619; Hunter v. Baker Motor Vehicle
Co. (1915) 225 Fed. 1006; Akzo Nobel and Others v. European Commission, (Case C-97/08 P).
86
Akzo Nobel and Others v. European Commission, (Case C-97/08 P); Holding Slovenskeelektrarne doo (HSE)
v.Commission, Case T-399/09 (2014) 4 CMLR21.
22 | P a g e
96. The competition authority cannot find a SEE merely on the basis that the parent company
is able to exert a decisive influence over its subsidiary, without demonstrating that the
influence was actually exerted87.
2.1 Presumption of decisive influence
97. Where a parent company holds (whether directly or indirectly) 100% shareholding in a
subsidiary, a rebuttable presumption arises that the parent did in fact exercise decisive
influence over subsidiary (the "presumption of decisive influence”)88.
98. This presumption is however rebuttable89, and it cannot amount to a determining factor.
The EU courts are yet to shed light on how this presumption can be rebutted90.
99. The ECJ has said that the presumption that the parent exercises influence: seeks precisely
to find a balance between the importance of penalizing conduct contrary to the competition
rules, and to prevent its repetition and the requirements of certain general principles of
European Union law, such as in particular the presumption of innocence, that penalties
should be applied only to the offender, legal certainty and the rights of the defence,
including the principle of equality of arms, it is particularly for that reason that it is
rebuttable91.
100. The Commission cannot merely show that the parent was able to exercise decisive
influence, but must show either by evidence or by relying on the presumption, that it did
so92.
101. The fact that the shares of one company all belong to another does not make the
subsidiary a mere alias, or trustee or agent for the parent company or for the shareholders
of the parent company, the relationship is that of shareholder to corporation and does not
constitute the subsidiary an agent93.
87
General TechnicOtis v. Commission, Joined Cases T-141/07, T-142/07, T-145/07 and T-146/07 (2011) ECR –II
4977.
88
Akzo Nobel and Others v. European Commission (Case C-97/08 P); Freight Forwarding Case, CCS
700/003/11.
89
Gosselin Group NV and StichingAdministratiekantoorPortielje v. Commission (2011) ECR II- 0000.
90
Stefan Thomas, Guilty of a Fault that One Has Not Committed: The Limits of the Group-Based Sanction
Policy Carried Out by the Commission and the European Courts In EU-Antitrust Law, 11 J. Eur. Compet. Law
Pract. 28, 31 (2015).
91
Eni SpA v. Commission, Case C-508/11, [2013] E.C.R. I; Schindler Holding v. Commission, Case C-501/11
P, [2013] E.C.R. I; Elf Aquitaine SA v. European Commission, E.C.R. I-8947.
92
Kendrion NV, Case C-50/12 P, [2013] E.C.R. I; StoraKopparbergsBerslaga AB v. Commission, Case C286/98,
[2000] E.C.R. I-9925; Bolloré SA v. Commission, Joined Cases 109, 118, 122, 125, 126, 128, 129, 132,
& 138/02, [2007] E.C.R. II-947; Contra garantovanáa.s. v. Commission, Case T-392/09, [2012] E.C.R. II.
93
Henry W. Ballantine, Separate Entity of Parent and Subsidiary Corporations, 14 CLR 12, 17 (1925).
23 | P a g e
102. In Aristrain v. Commission94, the Court stated that: The simple fact that the share
capital of two separate commercial companies is held by the same person or the same
family is insufficient, in itself, to establish that those two companies are an economic and
that under Community competition law, the actions of one company can be attributed to
the other.
103. In Air Liquide, the parent company was held liable even after showing that none of the
subsidiary’s directors were members of the parent’s management board the subsidiary’s
directors had very wide powers, the subsidiary had its own commercial, marketing, human
resources, information technology, and accounts departments and no instructions were
given by the parent company for the infringement, the subsidiary had neither sought or
received instructions from the parent, but ran its own business without the parent being
involved. Even after this, the parent company was held liable because it had appointed the
parent company had power to appoint the subsidiary’s directors95.
104. The judgement of Air Liquide is a highly criticized one, the Commission should accept
that in cases such as Air Liquide the overwhelming weight of evidence is in favour of
autonomy: if the subsidiary in that case were not autonomous, it is hard to imagine a case
in which any subsidiary would be, the Commission must not give excessive weight to the
presumption96.
105. A company cannot do less than nothing, so if a completely inactive parent could be
fined, the presumption would be ir-rebuttable, and every parent company would always be
liable. It would be unreasonable, and contrary to international comity, to say that a parent
company that fulfils the requirements of the company law applicable to it has exposed itself
to fines. If this were enough to result in fines, the presumption would be impossible to
rebut97. If the presumption becomes ir-rebuttable, it would amount to a breach of
fundamental rights, the rebuttable nature of the presumption is necessary in order to
guarantee the rights of the defence and access to justice of the parent company98.
106. It is for this reason that it cannot be argued that Omega appointed Ambros or Papersky’s
directors and hence it is liable. If that would be the case, then, as stated above, the
presumption would be non-rebuttable. This would then amount to a breach of fundamental
94
Aristrain v. Commission, Case C-196/99 P, (2003) E.C.R I11005.
95
L’Air liquid, (2011) E.C.R. II-2809.
96
John Temple Lang, How Can The Problem of The Liability of A Parent Company for Price Fixing by A
Wholly-owned Subsidiary Be Resolved?, 37 Fordham Intl LJ 1481, 1487 (2014).
97
Ibid.
98
Akzo Nobel and Others v. European Commission, (Case C-97/08 P)
24 | P a g e
rights and the parent company would be liable in every case. The commission is legally
obliged to maintain that the presumption is rebuttable99.
107. It is clear that the conduct of a subsidiary may be imputed to the parent company in
particular where, although having a separate legal personality, that subsidiary does not
decide independently upon its own conduct on the market, but carries out, in all material
respects, the instructions given to it by the parent company100. No such instruction was
given by Omega to Ambrox or Papersky and the terms of the agreement between Raven
and the latter was an independent action which took place before Omega acquired Ambrox
and Papersky.
108. This action of Ambrox and Papersky is independent of Omega as it is the directors of
the company who take such decisions101. They have a wide range of powers and manage all
the affairs of the company102. Such directors of Ambrox and Papersky are independent of
Omega and are capable of taking such a decision themselves.
2.2 No fault on part of the parent company.
109. With regards to the second part, there has been a case where the European Commission
required additional factors, apart from a finding of a SEE, before it was willing to attribute
liability within a SEE. E.g., Alliance One International Inc. v. Commission103, where the
ECJ confirmed that it was open for the European Commission to waive reliance solely on
the 'presumption of decisive influence', and to hold parent companies liable only where
there is evidence to support the presumption of actual exercise by the parent companies of
decisive influence which arises from the control by the parent companies of the entire share
capital of the subsidiaries. In this case, the European Commission decided in its
infringement decision not to hold some of the parent companies liable due to a lack of
material involvement.
110. The judgement in Azko Nobel104 also implicitly supports the suggestion that an
additional element of fault, responsibility or participation is needed before liability may be
attributed to the parent company, the act of instructing the subsidiary's anti- competitive
99
General Quimica and Others v. Commission, Case C-90/09 P, [2011] E.C.R. I-0001; Elf Aquitaine v.
Commission, Case C-521/09 P, (2011) E.C.R. I-8947; General Quimica v. Commission, Case C-90/09 P, (2011)
E.C.R. I-000; Air Liquide v. Commission, Case T-185/06, (2006) E.C.R. II-2809; Edison v. Commission, Case
C-446/11 P, (2013) E.C.R.; Groupe Gascogne v. Commission, Case C-58/12 P, (2013) E.C.R. I
100
Akzo Nobel and Others v. European Commission, (Case C-97/08 P).
101
Ferguson v. Wilson, (1866) 2 Ch App 77; U. S. v. Reading Co. (1920) 253 U. S. 26, 64; Linn & Lane Timber
Co. v. U. S. (1915) 236 U. S. 574.
102
Judhah v. Rampada Gupta, AIR 1959 Cal 715.
103
Alliance One International Inc. v. Commission, Cases C-628/10 P and C- 14/11 P [2012] 5.
104
Akzo Nobel and Others v. European Commission, (Case C-97/08 P).
25 | P a g e
conduct may indicate some level of fault, responsibility, or participation by the parent
company in the anti-competitive conduct105. The classification cannot be done solely on the
basis of SEE and some additional fault is required106.
111. In Grolsch,107 the General Court held that the Commission had insufficient evidence of
the involvement of the company in the infringement.
112. It follows from the above that, if a parent company is able to demonstrate that it did not
exercise decisive influence over its subsidiary that is involved in the anti- competitive
activity, the principle of personal responsibility would allow the parent company to escape
liability for its subsidiary's conduct108.
113. The United Kingdom (‘UK’) also upholds the principle that a parent company who
neither participates nor has decisive influence over other subsidiaries cannot be held liable
for the infringement by its subsidiary109.
114. Therefore, in the present case Omega exercises no control over Ambrox and Papersky.
The actions of Ambrox and Papersky are independent of Omega. There is not enough
evidence to prove that Omega had any say in the agreement signed between Ambrox,
Papersky and Raven. It was their independent decision. In both of the cases, the parent –
liability test is not satisfied.
115. The data collected will be shared among the Omega group of companies. Omega is not
the sole beneficiary in this case.
116. Hence, Omega is not a relevant party to this case.
105
Joshua Seet, Attribution of Liability Between Parent and Subsidiary Within a Single Economic Entity: The
Singapore Experience, 3 SJLS 124, 135 (2017).
106
OkeogheneOdudu & David Bailey, The Single Economic Entity Doctrine in EU Competition Law, 51 CML
Rev. 1721, 1746 (2014).
107
Koninklijke Grolsch v. Commission, Case T-234/07, [2011] E.C.R. II-6169.
108
General Química SA v. Commission, C-90/09 P [2011] ECR I- 1.
109
Sainsbury’s Supermarket Ltd. v. Mastercard Incorporated, (2016) CAT 11.
26 | P a g e
PRAYER
Wherefore in light of the issues raised, authorities cited and arguments advanced, it is most
humbly and respectfully prayed that the Hon’ble Competition Commission of India be pleased
to ADJUDGE and DECLARE that:
1. CCW does not have jurisdiction to adjudicate on the matter of data privacy.
2. Omega has not abused its dominant position.
3. CCW does not have the power to inquire into the combination to re-assert AAEC after the
lapse of 1 year.
4. Inclusion of omega as a party in the case is not valid.
AND/OR
Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience.
And for this, counsel on behalf of the Opposite Party as are duty bound, shall forever humbly
pray.
S/d _____________
(COUNSEL ON BEHALF OF THE OPPOSITE PARTY)
xxi | P a g e

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T14 – OPPOSITE PARTY

5th TNNLU- CCI

THE HON’BLE COMPETITION COMMISSION OF WADIYA

SECTION 19 OF WADIYA THE COMPETITION ACT, 2002

Case No. of 2023

Raven Pvt. Ltd. OPPOSITE PARTY 2

Paper Sky Wadiya Ltd. OPPOSITE PARTY 3

AmbroxWadiya Ltd. OPPOSITE PARTY 4

FaceView OPPOSITE PARTY 5

MEMORANDUM on behalf of RESPONDENTS

TABLE OF CONTENTS ........................................................................................................... 2

LIST OF ABBREVIATIONS .................................................................................................... 4

STATEMENT OF FACTS ...................................................................................................... 16

ISSUES RAISED ..................................................................................................................... 18

SUMMARY OF ARGUMENTS ............................................................................................. 19

ARGUMENTS ADVANCED ................................................................................................... 1

ISSUE 1 -WHETHER THE CCW HAS JURISDICTION TO ADJUDICATE ON

[1] No data privacy breach........................................................................................................ 1

[2] Data Collection is necessary for innovation. ...................................................................... 3

[3] Different Law. ...................................................................................................................... 7

ISSUE 2: WHETHER OMEGA ABUSED ITS DOMINANT POSITION? ............................ 9

[1] What Is the Relevant Market In The Present Case? .......................................................... 9

[2] Omega Has Not Abused Its Dominant Position. .............................................................. 12

ISSUE 3- WHETHER CCW HAS THE POWER TO INQUIRE INTO THE

ISSUE 4- WHETHER INCLUSION OF OMEGA AS A PARTY TO THE CASE IS

[1] Omega Exercises No Control Over Its Subsidiaries’actions. .......................................... 21

[2] The Parent Company Liability Test Is Not Satisfied........................................................ 22

ABBREVIATIONS FULL FORM

AAEC APPRECIABLE ADVERSE EFFECTS

CCI COMPETITION COMMISSION OF INDIA

CCW COMPETITION COMMISSION OF WADIYA

CLRC COMPETITION LAW REVIEW COMMITTEE

Comp LR COMPETITION LAW REVIEW

COMPAT COMPETITION APPELLATE TRIBUNAL

ECJ EUROPEAN COURT OF JUSTICE

et. al. AND OTHERS

FTC FEDERAL TRADE COMMISSION

OECD ORGANISATION FOR ECONOMIC CO-

OPERATION AND DEVELOPMENT

r/w READ WITH

Rodeo RODEO PAY

SCC SUPREME COURT CASES

U.S. UNITED STATES

VBER VERTICAL BLOCK EXEMPTION

BOOKS PG. NO.

Competition Commission of India, Compliance Manual for Enterprises (D.P.

Lennart Ritter Et. Al., W. David Braun, European Competition Law: A

Loannis Lianos, Valentine Korah and Paolo Siciliani, Competition Law 19

(first published in 2019, Oxford University Press 2019)

In Re: Whatsapp LLC (2021) SCC OnLine CCI 19 9

Hoffmann-La Roche & Co. v. Commission, (1979) ECR 461.

Sunil Bansal v. Jaiprakash Associates Ltd., (2015) Comp LR 1009 (CCI).

Rajeev Hitendra Pathak v. Achyut Kashinath Karekar, (2011) 9 SCC 541.

Narshi Thakershi v. Pradyumansinghji, AIR 1970 SC 1273.

Brahm Dutt v. Union of India, (2005) 2 SCC 431.

Judhah v. Rampada Gupta, AIR 1959 Cal 715.

U.K. Mehra v. Union of India, AIR 1994 Delhi 25.

Hoffmann-La Roche & Co. v. Commission, (1979) ECR 461.