TEAM CODE: T-45 (P)

1ST NALSAR-CCI ANTITRUST MOOT COURT COMPETITION, 2022

BEFORE THE COMPETITION COMMISSION OF VOLTA

UNDER § 19 R/W § 46 OF THE COMPETITION ACT, 2002

IN THE MATTER OF –

SUO MOTO CASE NO. _____/2022

IN RE: ALLEGED ANTI-COMPETITIVE CONDUCT IN THE TOBACCO GOODS MARKET IN VOLTA

AGAINST:
1. STELLA TOBACCO LIMITED OP-1
2. ARBORIS TOBACCO PRODUCTS LIMITED OP-2
3. VENUS CIGARS LIMITED OP-3
4. BLUE ANDEAN TOBACCO VOLTA LIMITED OP-4
5. VOLTAN IMPERIAL LIMITED OP-5
6. VOLTAN TOBACCO ASSOCIATION OP-6

MEMORANDUM ON BEHALF OF THE PROSECUTION

 1ST NALSAR-CCI ANTITRUST MOOT COURT COMPETITION, 2022

TABLE OF CONTENTS

TABLE OF ABBREVIATIONS .......................................................................................... III

INDEX OF AUTHORITIES ................................................................................................ IV

STATEMENT OF JURISDICTION ..................................................................................... X

STATEMENT OF FACTS ................................................................................................... XI

ISSUES RAISED................................................................................................................ XIV

SUMMARY OF ARGUMENTS......................................................................................... XV

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

I. A LENIENCY APPLICANT CANNOT SUBSEQUENTLY CHALLENGE THE FINDING OF A

VIOLATION UNDER § 3(3)(A) OF THE COMPETITION ACT, 2002 ........................................... 1

A. SUBMISSION OF LENIENCY APPLICATION IS EQUIVALENT TO ACCEPTANCE OF GUILT

UNDER § 3(3)(A) OF THE ACT............................................................................................... 1

1. Condition of admission under EU’s Leniency Regime ............................................ 3

2. Condition of admission under UK’s Leniency Regime ............................................ 4

3. Condition of admission under US’ Leniency Regime .............................................. 5

B. FOLLOWING ADMISSION, ALLOWING A LENIENCY APPLICANT TO SUBSEQUENTLY

CHALLENGE THE FINDING OF A VIOLATION WOULD DEFEAT THE OBJECTIVE OF GRANTING

LENIENCY ............................................................................................................................ 5

1. It will amount to Self-Contradiction which hinders the obligation to cooperate .... 6

2. Challenging the violation would lead to failure of “Prisoner’s Dilemma” ............ 7

II. THE EXCHANGE OF PRICE SENSITIVE INFORMATION IN THE CONTEXT OF THE PRESENT
CASE AMOUNTS TO A VIOLATION OF § 3(3)(A) OF THE COMPETITION ACT ........................ 9

A. THERE EXIST AN AGREEMENT TO COORDINATE FOR PRICE FIXING AMONGST THE

OPPOSITE PARTIES ............................................................................................................. 10

1. Exchange of Price Sensitive Information .............................................................. 10

2. Price Parallelism ................................................................................................... 12

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B. THE AGREEMENT IS LIKELY TO CAUSE APPRECIABLE ADVERSE EFFECT ON

COMPETITION .................................................................................................................... 14

III. IMPERIAL AND BAT CAN BE CONSIDERED AS PART OF THE SINGLE ECONOMIC ENTITY
FOR THE PURPOSES OF THE PRESENT CARTEL .................................................................... 16

A. THE ENTITIES CONSTITUTE SEE BECAUSE IMPERIAL DOES NOT ACT INDEPENDENTLY OF
BAT .................................................................................................................................. 16

1. BAT has control over Imperial’s decision-making power ..................................... 17

2. There is inseparability of economic interest.......................................................... 18

B. BAT AND IMPERIAL ACTED AS A SEE FOR THE PURPOSE OF THE CARTEL................... 19

IV. IF BAT AND IMPERIAL ARE A SEE FOR THE PRESENT CARTEL THEN CCV SHOULD NOT
EXTEND A SIMILAR PERCENTAGE OF REDUCTION IN PENALTY TO IMPERIAL IF BAT’S
LENIENCY APPLICATION IS SUCCESSFUL. ............................................................................ 22

A. THE LENIENCY APPLICATION OF BAT CANNOT BE CONSIDERED AS THE LENIENCY

APPLICATION ON BEHALF OF IMPERIAL.............................................................................. 22

1. All the members of the cartel have to file separately for leniency ........................ 22

2. Joint Application for leniency is not allowed under the Lesser Penalty Regulation
24

B. IN ARGUENDO, ASSUMING THAT BAT’S LENIENCY APPLICATION INCLUDES ALL THE

MEMBERS OF SEE, IMPERIAL HAS STILL FAILED TO FULFIL THE CONDITIONS FOR GRANTING

LENIENCY .......................................................................................................................... 25

1. Imperial has failed to make any vital disclosure which adds significant value for
establishing the contravention. ..................................................................................... 26

2. Imperial has failed to cooperate with the CCV throughout the investigation. ...... 27

PRAYER ............................................................................................................................. XVI

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TABLE OF ABBREVIATIONS

ABBREVIATIONS WORDS

§ Section

¶ Paragraph

Arboris Arboris Tobacco Products Limited

BAT Blue Andean Tobacco Volta Limited

CCI Competition Commission of India

CCV Competition Commission of Volta

CMA Competition and Marketing Authority

FIBP Federal Investment Promotion Board

FTA Federal Trade Authority of Volta

Imperial Voltan Imperial Limited

Klaus Klaus Tobacco Limited

LVP Liberal Voltan Party

PMI Pollock & Morest International Volta Limited

Stella Stella Tobacco Limited

Supersniffs Supersniffs Private Limited

The Act Competition Act, 2002

Tigris Tigris Industries Limited

Venus Venus Cigars Limited

VTA Voltan Tobacco Association

MEMORANDUM for PROSECUTION PAGE | III [TABLE OF ABBREVIATIONS]

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INDEX OF AUTHORITIES

INDIAN CASES PAGE NO.

All India Tyre Dealers’ Federation v. Tyre Manufacturers, RTPE No. 20

21
of 2008 (CCI)
Ambuja Cements Limited v. Competition Commission of India & Ors.,
11
Appeal No. TA(AT) (Compt) No.22 of 2017 (NCLAT)
Builders Association of India v. Cement Manufactures Association,
13, 15, 21
(2012) Comp LR 629 (CCI)
Exclusive Motors Pvt Limited v. Automobili Lamborghini S.P.A, Case
17, 23
No. 52 of 2012 (CCI)
India Glycols Ltd. v. Indian Sugar Mills Association, Case No. 94 of 2014
18
(CCI)
Justickets Pvt. Ltd. v. Big Tree Entertainment Pvt. Ltd., Case No. 08 of
20
2016 (CCI)
Meru Travel Solutions Pvt. Ltd. v. M/s ANI Technologies Pvt. Ltd., Case
20, 21
No. 25-28 of 2017 (CCI)
Ministry of Corporate Affairs v. Apollo Tyres Ltd., Case No. 08 of 2013
21
(CCI)
Mr. G. Krishnamurthy v. Karnataka Film Chamber of Commerce, Case
22
No. 42 of 2017 (CCI)
National Insurance Companies Ltd & Ors. v. Competition Commission of
23
India, (2017) Comp LR 1 (CCI)
Neeraj Malhotra v. Deustche Post Bank Home Finance, Case No. 5 of
15
2009 (CCI)
Rajasthan Cylinder and Containers Ltd. v. Union of India, (2020) 16 SCC
14
615
Shamsher Kataria v. Honda Siel & Ors., Case No. 03 of 2011 (CCI) 18, 19, 20
Suo Moto Case No 01 of 2017, In Re: Alleged Cartelisation in Flashlights
2, 3, 6, 28
Market in India

MEMORANDUM for PROSECUTION PAGE | IV [INDEX OF AUTHORITIES]

 1ST NALSAR-CCI ANTITRUST MOOT COURT COMPETITION, 2022

Suo Moto Case No 02 of 2016, In Re: Cartelisation in respect of zinc

24
carbon dry cell batteries market in India
Suo Moto Case No 03 of 2014, In Re: Cartelisation in respect of tenders
floated by Indian Railways for supply of Brushless DC Fans and other 2, 9, 28
electrical items
Suo Moto Case No 03 of 2014, In Re: Cartelisation in respect of tenders
floated by Indian Railways for supply of Brushless DC Fans and other 24
electrical items, (decided on Jan. 18, 2017)
Suo Moto Case No 06 of 2017, In Re: Alleged anti-competitive conduct 3, 12, 13, 14,
in the Beer Market in India 15, 16
Suo Moto Case No. 10 of 2014, In Re: Cartelisation by Shipping Lines in
the matter of provision of Maritime Motor Vehicle Transport Services to 11, 25, 26
the Original Equipment Manufacturers
Suo Motu Case No. 05 of 2017, In Re: Cartelisation in Industrial and
15
Automotive Bearings, (decided on Jun. 06, 2020)
Technip SA v. SMS Holding (P) Ltd. & Ors., (2005) 5 SCC 465 11
UltraTech Cement Limited/Jaiprakash Associates Limited, C-
18
2015/02/246 (CCI)

EU CASES PAGE NO.

Case C-170/83, Hydrotherm v. Compact, 1984 E.C.R. I-02999 24

Case C-137/07, P Erste Group Bank and Others v. Commission, 2009
7, 29
E.C.R. I-8681
Case C- 301/04, P Commission v. SGL Carbon AG, 2006 E.C.R. I- 5915 7
Case C-13/60, Mausegatt v. Haute autorite, ECLI:EU:C:1962:15 17, 19
Case C-238/12 P, FLSmidth v. Commission, ECLI:EU:C:2014:284 27, 28
Case C-293/13 P, Fresh Del Monte Produce v. Commission,
16
ECLI:EU:C:2015:416
Case C-41/90P, Höfner and Elser v. MacrotronHoffner,
24
ECLI:EU:C:1991:161
Case C-636/13 P, Roca Sanitario v. Commission, 2017
8
ECLI:EU:C:2017:56

MEMORANDUM for PROSECUTION PAGE | V [INDEX OF AUTHORITIES]

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Case C-637/13 P, Laufen Austria v. Commission, EU:C:2017:51 26

Case C-73/95P, VIHO Europe v. Commission, EU:C:1996:405 24
Case C-74/14 P, "Eturas" UAB and Others v Lietuvos Respublikos
15
konkurencijos taryba, ECLI:EU:C:2016:42
Case C-8/08 P, T-Mobile Netherlands BV v. Raas Van Bestuur Van De
12
Nederlandse Mededingingsautoriteit, ECLI:EU:C:2009:343
Case C-90/09P, General Química and Others v. Commission,
17, 25
EU:C:2011:21
Case C-97/08, Akzo Nobel NV and others v. Commission, 2009 E.C.R. I-
6
2369
Case C-98/17P, Philips and Philips France v. Commission,
25
EU EU:C:2018:774
Case T- 12/06, Deltafina v. Commission, 2011 E.C.R. II-0000 7, 29
Case T-109/02, Bolloré SA and Others v. Commission of the European
17, 21
Communities, 2007 E.C.R. II-00947.
Case T-110/07, Siemens v. Commission, ECLI:EU:T:2011:68 24
Case T-111/05, UCB v. Commission, 2007 E.C.R. II-4949 7
Case T-213/02, P Dansk Rørindustri and Others v. Commission, 2005
7
E.C.R. I-5425
Case T-354/94, Stora Kopparbergs Bergslags v. Commission, 1998
21
E.C.R. II-02111
Case T-395/09, Gigaset AG v. Commission, 2014 E.C.R. I-0000 3, 6
Case T-408/10, Roca Sanitario v. Commission, ECLI:EU:T:2013:440 24, 27
Case T-543/08, RWE and RWE Dea v. Commission, EU:T:2014:627 27
Case C-40/73, Coöperatieve Vereniging "Suiker Unie" UA and others v.
12
Commission of the European Communities, 1975 E.C.R. I-1663

UK & US CASES PAGE NO.

Case 50415, Decision of the Competition and Markets Authority Supply 5

of groundworks products to the construction industry (decided on Dec.
17, 2020)

MEMORANDUM for PROSECUTION PAGE | VI [INDEX OF AUTHORITIES]

 1ST NALSAR-CCI ANTITRUST MOOT COURT COMPETITION, 2022

Napp Pharmaceutical Holdings Limited and Subsidiaries v. Director 4

General of Fair Trading (2002) CAT 1
American Needle, Inc. v. National Football League, 560 U.S. 183 (2010) 19
American Tobacco Co. v. United States, 328 U.S. 781 (1946) 20
Copperweld Corp. v. Independence Tube Corp, 467 U.S. 752 (1984) 18, 19
United States v. Ebay, Inc., 968 F.Supp.2d 1030 (N.D. Cal. 2013) 21

REGULATIONS, NOTICES, GUIDES & POLICIES PAGE NO.

CMA, Quick Guide to Complying with Competition Law - Protecting 9

businesses and consumers from anti-competitive behaviour
CMA73 CMA’s Guidance as to the Appropriate Amount of a Penalty 4
(2021)
Commission Guidelines, Guidelines on the applicability of Article 101 of 11
the Treaty on the Functioning of the European Union to horizontal co-
operation agreements, 2011 O.J. (C11) 1
Commission Notice on Immunity from fines and reduction of fines in 3, 27, 28
cartel cases, 2006 O.J. (C 298) 11
OFT1495 Applications for leniency and no-action in cartel cases OFT's 4
detailed guidance on the principles and process (2012)
The Competition Commission of India (Lesser Penalty) Regulations, 2, 6, 27, 28
2009
US Department of Justice, Corporate Leniency Policy 5
US Department of Justice, Frequently Asked Questions About The 5
Antitrust Division’s Leniency Program And Model Leniency Letters

STATUTORY PROVISIONS PAGE NO.

The Competition Act, 2002 1, 11, 23, 24

The Enterprises Act, (2002), c. 40, § 188 4

OTHER AUTHORITIES PAGE NO.

MEMORANDUM for PROSECUTION PAGE | VII [INDEX OF AUTHORITIES]

 1ST NALSAR-CCI ANTITRUST MOOT COURT COMPETITION, 2022

Competition Commission of India, Guide on Leniency Programme, 7 25

(2020)
DAF/COMP (2010) 37, Information Exchanges between Competitors 12
under Competition Law (OECD, Jul.11, 2011)
DAF/COMP(2012)25, Leniency For Subsequent Applicants (OECD, Oct. 6
2012)
DAF/COMP/WP3/M(2018)1/ANN2, Challenges and co-ordination of 10
leniency programmes (OECD, Jun. 5, 2018)
UNCTAD MENA Programme Expert, Competition Guidelines: Leniency 1
Programmes at 1, UNCTAD/DITC/CLP/2016/3 (Jun. 22, 2016)

BOOKS PAGE NO.

ABIR JOY AND JAYANT KUMAR, COMPETITION LAW IN INDIA (Eastern Law
3, 13, 24, 25
House, 2nd ed. 2008)
ALISON JONES, BRENDA SUFRIN & NIAMH DUNNE, EU COMPETITION LAW:
8
TEXT, CASES AND MATERIALS (OUP Oxford eds.,7th ed., 2019)
BASKARAN BALASINGHAM, THE EU LENIENCY POLICY: RECONCILING
9
EFFECTIVENESS AND FAIRNESS (Wolters Kluwer eds., 1st ed. 2017)
C. HARDING AND J. JOSHUA, REGULATING CARTELS IN EUROPE (Oxford
9
University Press eds., 2nd ed. 2010)
GAUTAM SHAHI, INDIAN COMPETITION LAW (Taxman, 1st ed. 2021) 11
INGRID MARGRETHE AND HALVORSEN BARLUND, LENIENCY IN EU
COMPETITION LAW, INTERNATIONAL COMPETITION LAW SERIES (Kluwer 6, 22
Law International eds., 2020)
JACQUES BUHART, LENIENCY REGIMES (Sweet & Maxwell, 5th ed. 2015) 4
R. ALLENDESALAZAR AND P. MARTÍNEZ-LAGE,EUROPEAN COMPETITION
LAW ANNUAL 2009: THE EVALUATION OF EVIDENCE AND ITS J UDICIAL
8
REVIEW IN COMPETITION CASES (CD Ehlermann and M Marquis eds.,
Hart Publishing, 2011)
RICHARD WISH AND DAVID BAILEY, COMPETITION LAW (Oxford eds., 9th
7, 24
ed. 2018)

MEMORANDUM for PROSECUTION PAGE | VIII [INDEX OF AUTHORITIES]

 1ST NALSAR-CCI ANTITRUST MOOT COURT COMPETITION, 2022

S M DUGAR, GUIDE TO COMPETITION ACT, 2002 (Lexis Nexis eds., 8th ed.
7, 11, 23
2020)
VAN BAEL AND BELLIS, COMPETITION LAW OF THE EUROPEAN
9, 11
COMMUNITY (Wolters Kluwer eds., 6th ed., 2004)

ARTICLES & JOURNALS PAGE NO.

Matthew Bennet and Philip Collins, The Law and Economics of

Information Sharing: The Good, the Bad and the Ugly, 5 EUROPEAN 15
COMPETITION JOURNAL 311 (2010)
Saikrishna & Associates, Cartels in India, (Apr. 2, 2019) 24
Bryant, P. and E.W. Eckard, Price Fixing: The Probability of Getting
9
Caught”, 73 THE REVIEW OF ECONOMICS AND STATISTICS 536, (1991)
C.R. Leslie, Antitrust Amnesty, Game Theory, and Cartel Stability 31 THE
9
JOURNAL OF CORPORATION LAW 453, 453-455 (2006)
C.R. Leslie, Trust, Distrust, and Antitrust 82 TEXAS LAW REVIEW 517,
9
514-520 (2004)
Chantal Lavoie, South Africa's Corporate Leniency Policy: A Five-Year
Review 33 WORLD COMPETITION LAW AND ECONOMICS REVIEW 157, 8
(2010)
Chen, Z. and P. Rey., On the Design of Leniency Programs 56 THE
9, 10
JOURNAL OF LAW & ECONOMICS 938, 917-957 (2013)
James Harrington, Optimal Corporate Leniency Programs, 56 THE
10
JOURNAL OF INDUSTRIAL ECONOMICS 215 (2008)
Levenstein, M and V. Suslow, Breaking Up Is Hard to Do: Determinants
8
of Cartel Duration 54 JOURNAL OF LAW AND ECONOMICS 472, (2001)
Michael Blatter, Optimal Leniency Programs when Firms Have
Cumulative and Asymmetric Evidence, 52 REVIEW OF INDUSTRIAL 10
ORGANIZATION 403 (2018)
S. Suurnäkki and M. L. Tierno Centella, Commission adopts revised
Leniency Notice to reward companies that report hard-core cartels 1 4
COMPETITION POLICY NEWSLETTER, 7-15 (2007)

MEMORANDUM for PROSECUTION PAGE | IX [INDEX OF AUTHORITIES]

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STATEMENT OF JURISDICTION

THE COUNSELS ON BEHALF OF THE PROSECUTORIAL WING OF THE OFFICE OF THE DG HUMBLY SUBMIT
THIS MEMORANDUM BEFORE THE HON’BLE COMPETITION COMMISSION OF VOLTA FOR THE SUO

MOTO CASE TAKEN BY THE COMMISSION UNDER § 19 OF THE COMPETITION ACT, 2002 BASED ON

THE DISCLOSURE BY THE FIRMS UNDER § 46 OF THE COMPETITION ACT, 2002 R/W THE

COMPETITION COMMISSION OF VOLTA (LESSER PENALTY) REGULATIONS, 2009.

It sets forth the facts, contentions and arguments in the present case in the jurisdiction of
the Commission.

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STATEMENT OF FACTS

PROFILE OF COMPANIES IN THE TOBACCO GOODS MARKET

TYPE OF ENTERED IN MARKET EXIT PRODUCTS
COMPANY
COMPANY MONTH YEAR YEAR MANUFACTURE
Stella Domestic Sept 2000 - Complete range
Arboris Domestic Oct 2000 - Complete range
Venus Domestic July 2001 - Complete range
BAT Argentina Jan 2003 - Complete range
PMI UK Jan 2003 - Complete range
Imperial Netherlands Nov 2003 - Complete range
Supersniffs Regional July 2007 2019 Pipe Tobacco, Snus
Tigris Regional Sept 2010 2020 Pipe Tobacco, Snus
Klaus Regional Jan 2011 2020 Pipe Tobacco, Snus

YEAR WISE TIMELINE OF EVENTS

ACTIVITIES TAKING PLACE

YEAR
2000 • Prohibition on sin goods such as alcohol and tobacco were removed and
trading in Sin Goods was legalised.
• Tax Rate - 7.5% on sin goods.
2002 • Competition Act, 2002 was passed and Competition Commission of Volta
(CCV), Voltan Appeals Tribunals (VAT) were formed.
2005-06 • The LVP increased the incidence of taxation on sin goods to 15%
• FTA announced the‘Tobacco Production, Distribution and Sales Regulation
Policy 2006.
• On 1 September 2006, the Voltan Tobacco Association (“VTA”) was
established by Stella, Arboris, Venus and BAT to discuss issues that affected
the tobacco industry as well as to present a united frontto the government
while negotiating on critical industry issues.
• CEO of Stella became the President of the VTA in 2006.
2010 • LVP increased the incidence of taxation on tobacco products to 22%.

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• Outrage by VTA for increase of incidence of taxation; however, the VTA

was unsuccessful in reducing the incidence of taxation.
2012 • Imperial consolidated with BAT by selling 40% of its stake.
2015 • Mails exchanged (Appendix 4-1) with subject: “Negotiation for Price Hike”
between member of VTA for making a representation to FTA.
2016 • Mails exchanged (Appendix 4-1) with subject: “Price List”.
2017 • WhatsApp messages exchanges (Appendix 4-2) between Ramya and Viral.
2020 • The CCV through its order dated 4 February 2020 prima facie observedthat
several players within the cigarette industry were engaged in collusion in
contravention of § 3(3) read with § 3(1) of the Competition Act, 2002 after
BAT’s submission of leniency application.
• Director General (“DG”) to undertook the investigation.
• The DG’s office conducted coordinated and simultaneous dawn raids at the
official premises of Stella, Arboris,Venus, Imperial and the VTA on 3 April
2020. Following which Stella, Arboris and Venus filled for leniency.
However, no leniency application was submitted on behalf of Imperial
2021 • The DG submitted its investigation report (“DG Report”) to the CCV on 22
March 2021
• BAT accepted all the findings of theDG, barring one i.e. BAT and Imperial
to be a single economic entity. Imperial also submitted its response.
• Stella and Venus accepted all findings in the DG Report and prayed for
lenient penalty imposition.
• Arboris opposed the DG’s Report.
2022 • The CCV has reviewed the written submissions made by all the OPs as well
as the VTA, and it shall be hearing final arguments 20 March 2022.

LENIENCY APPLICATIONS
APPLIED IN
PRIORITY STATUS LESSER PENALTY
RANK COMPANY
APPLICATION APPLICATION
DD MM YY DD MM YY
1 BAT 01 Dec 2019 11 Dec 2019
2 Stella NA NA NA 01 May 2020

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3 Arboris 19 June 2020 NA NA NA

4 Venus 04 Aug 2020 NA NA NA

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ISSUES RAISED

I. WHETHER A LENIENCY APPLICANT CAN SUBSEQUENTLY CHALLENGE THE FINDING OF

A VIOLATION UNDER § 3(3)(A) OF THE COMPETITION ACT?

II. WHETHER THE EXCHANGE OF PRICE SENSITIVE INFORMATION IN THE CONTEXT OF THE
PRESENT CASE AMOUNTS TO A VIOLATION OF § 3(3)(A) OF THE COMPETITION ACT?

III. WHETHER IMPERIAL AND BAT CAN BE CONSIDERED AS PART OF THE SINGLE

ECONOMIC ENTITY FOR THE PURPOSES OF THE PRESENT CARTEL?

IV. IF YES, SHOULD THE CCV ALSO EXTEND A SIMILAR PERCENTAGE OF REDUCTION IN

PENALTY TO IMPERIAL PURSUANT TO BAT’S LENIENCY APPLICATION, IF BAT’S

LENIENCY APPLICATION IS SUCCESSFUL?

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SUMMARY OF ARGUMENTS

I. A LENIENCY APPLICANT CANNOT SUBSEQUENTLY CHALLENGE THE FINDING OF A

VIOLATION UNDER § 3(3)(A) OF THE COMPETITION ACT

The prosecution humbly submits that a leniency applicant cannot subsequently challenge the
finding of a violation under § 3(3)(a) of the Competition Act, 2002. As firstly, since submission
of a leniency application is equivalent to an admission of violation of the said provision. This
equivalence can be established by drawing inference from provisions of the Lesser Penalty
Regulations, 2009 and relying on the leniency regimes of matured jurisdictions like the EU,
the UK and the US.
Secondly, after admission of the violation, if a leniency applicant is allowed to challenge the
finding of the violation, then the purpose of the leniency program will be severely defeated. As
it will amount to Self-Contradiction which hinders the obligation to cooperate and it will lead
to failure of Prisoner’s Dilemma.

II. THE EXCHANGE OF PRICE SENSITIVE INFORMATION IN THE CONTEXT OF THE

PRESENT CASE AMOUNTS TO A VIOLATION OF § 3(3)(A) OF THE COMPETITION ACT

The Prosecution humbly submits that the exchange of price sensitive information in the context
of present case amounts to violation of § 3(3)(a) of the Act. As, firstly, the OPs formed an
agreement to coordinate. It is established law that given the hardcore nature of cartels, an
agreement has to be determined through conducts of OPs and market circumstances. In the
present case, the conduct of OPs was that they shared price sensitive information from 2015-
2020 and during the same period, their price revisions were in tandem.
Secondly, the agreement amongst the OPs established from price coordination has also resulted
in exclusion of three market players leading to AAEC in the market. Lastly, the OPs
concertedly made a request for a price hike after agreeing on a specific amount. In light of a
relevant case law, this agreement is violative of § 3(3)(a) and is likely to cause AAEC.

III. IMPERIAL AND BAT CAN BE CONSIDERED AS PART OF THE SINGLE ECONOMIC
ENTITY FOR THE PURPOSES OF THE PRESENT CARTEL

The Prosecution humbly submits that Imperial and BAT can be considered as part of the SEE
for the purpose of the present cartel. As, firstly, Imperial does not act independently of BAT as
there is inseparability of economic interests and BAT has control over commercial decisions

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of Imperial. It is established law that two entities constitute SEE when one cannot act
independently of another.
Secondly, for the purpose of cartel, Imperial and BAT have acted as a SEE. In this premise,
due regards are given to how these entities operated in the market. From their operations in the
market, it was derived that Imperial participated in the cartel through BAT and thus, they acted
as a SEE for the purpose of the cartel.

IV. IF BAT AND IMPERIAL ARE A SEE FOR THE PRESENT CARTEL THEN CCV SHOULD
NOT EXTEND A SIMILAR PERCENTAGE OF REDUCTION IN PENALTY TO IMPERIAL IF

BAT’S LENIENCY APPLICATION IS SUCCESSFUL

The Prosecution humbly submits that if BAT and Imperial are a SEE for the present cartel then
CCV should not extend a similar percentage of reduction in penalty to Imperial if BAT’s
leniency application is successful. As firstly, the Leniency Application of BAT cannot be
considered as the Leniency Application on behalf of Imperial. The rationale behind the same
is that all the members of the cartel have to file separately for leniency and joint application for
leniency is not allowed under the Lesser Penalty Regulation.
Secondly, assuming that BAT’s Leniency Application includes all the members of SEE,
Imperial has still failed to fulfil the conditions for granting leniency. The rationale behind the
same is that in the present case imperial by not cooperating and not providing any evidence for
establishment of Cartel has violated the obligation to provide vital disclosure as well as the
obligation to cooperate under Reg. 3 of lesser penalty regulation.

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ARGUMENTS ADVANCED

I. A LENIENCY APPLICANT CANNOT SUBSEQUENTLY CHALLENGE THE FINDING OF A

VIOLATION UNDER § 3(3)(A) OF THE COMPETITION ACT, 2002

¶ [1]. It is humbly submitted before the Hon’ble Competition Commission of Volta

(hereinafter referred to as “CCV”) that a leniency applicant subsequently cannot challenge the
finding of a violation under § 3(3)(a) of the Competition Act, 2002 (hereinafter referred to as
“the Act”). The premise of the present argument shall be in two-fold: first, submission of
leniency application is equivalent to admission of guilt under § 3(3)(a) of the Act [A]; second,
following admission, allowing a leniency applicant to subsequently challenge the finding of a
violation would defeat the objective of granting leniency [B].

A. SUBMISSION OF LENIENCY APPLICATION IS EQUIVALENT TO ACCEPTANCE OF GUILT

UNDER § 3(3)(A) OF THE ACT

¶ [2]. The leniency programme is designed for unveiling hard-core clandestine cartels which
would otherwise be difficult to detect and probe without assistance from an insider. 1 § 2(c) of
the Act defines cartel as an agreement between the parties to restrain trade by controlling,
limiting or attempting to control the price, production, distribution, or sale of goods or service
for their mutual benefit.2
¶ [3]. As these cartels are hard to discern, the CCV provides incentive to the members in order
to disclose their cartel. In consequence, § 46 of the Act enables the CCV to offer lenient
treatment to a cartel member who submits full, honest, and vital information about the cartel in
exchange for a lesser penalty.3 Complementing the same, CCV passed frame “the Competition
Commission of Volta (Lesser Penalty) Regulations, 2009” (hereinafter referred to as “the
Lesser Penalty Regulation”).4
¶ [4]. Any enterprise or individual files leniency application in accordance with the provisions

1
UNCTAD MENA PROGRAMME EXPERT, COMPETITION GUIDELINES: LENIENCY PROGRAMMES at 1,
UNCTAD/DITC/CLP/2016/3 (Jun. 22, 2016), https://unctad.org/system/files/official-
document/ditcclp2016d3_en.pdf.
2
The Competition Act, No. 12 of 2003 INDIA CODE (2003), § 2(c) [hereinafter Competition Act, 2002].
3
Id. at § 46.
4
Cyril Shroff and Nisha Kaur Uberoi, India, in COMPETITION LAW IN ASIA PACIFIC: A PRACTICAL GUIDE 253-
297 (Katrina Groshinski and Caitlin Davies eds., Kluwer Law International, 2015).
MEMORANDUM for PROSECUTION PAGE | 1[ARGUMENTS ADVANCED]
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of Lesser Penalty Regulation. 5 Notably, in line with the Lesser Penalty Regulation, it can be
drawn that submission of leniency application is equivalent to admission of guilt as only the
member of cartel would fall under definition of ‘applicant’.
¶ [5]. As per Reg. 5(1) of the Les ser Penalty Regulation, an “applicant” submits application
for lesser penalty to CCV in order to avail the benefit of immunity or lenient treatment when
penalty is being imposed over for contravention of § 3 of the Act.6 The term “Applicant” has
been defined under Reg. 2(b) as ‘an enterprise who is or was a member of a cartel and includes
an individual who has been involved in the cartel on behalf of an enterprise, and submits an
application for lesser penalty to the Commission’.7 This indicates that in order to quality to be
an applicant under the said provision, an enterprise is required to have participated or involved
in the cartel.
¶ [6]. Though, there is no explicit condition of admission under the Lesser Penalty Regulation,
it is inferable from the condition mentioned under Reg. 3 that a leniency applicant is or must
have been a member of the cartel. Pertinently, by submitting the application of lesser penalty,
the applicant must admit its/his participation in the activities of cartel. Moreover, in order to
obtain the conditional leniency, it is necessary for an enterprise or individual to come under the
definition of “applicant” as the conditions laid down under Reg. 3 of the Lesser Penalty
Regulation are applicable to only an “applicant”.8 Hence, it essential for a person to admit its
participation in anti-competitive activities of cartel.
¶ [7]. The Competition Commission of India (hereinafter referred to as “CCI”) in the In Re:
Alleged Cartelisation in Flashlights Market in India,9 paragraph 89, it was highlighted that
Panasonic Energy India Co. Ltd. filed a lesser penalty application before the CCI without
admitting to the cartel and subsequently it had put forth arguments against such infringement.
However, the CCI pointed that the arguments put forth by Panasonic Energy India Co. Ltd
were misplaced as it has failed to acknowledge the fact of infringement and produce any
evidence thereof.10
¶ [8]. The CCI again took a similar view in the In Re: Alleged anti-competitive conduct in the

5
Suo Moto Case No 03 of 2014, In Re: Cartelisation in respect of tenders floated by Indian Railways for supply
of Brushless DC Fans and other electrical items (decided on Jan. 18, 2017).
6
L-3(4)/Reg-L.P./2009-10/CCI The Competition Commission of India (Lesser Penalty) Regulations, 2009 Reg.
5(1) (Aug. 13, 2009) [hereinafter Lesser Penalty Regulation].
7
Id. at Reg. 2(b).
8
Id. at Reg. 3.
9
Suo Moto Case No 01 of 2017, In Re: Alleged Cartelisation in Flashlights Market in India, at ¶89 (decided on
Nov. 6, 2018).
10
Id.
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Beer Market in India case,11 paragraph 171, by stating that “Though OP-1 and OP-4 have
raised several arguments against the analysis and findings of the DG, all three cartelising
companies, i.e., OP-1, OP-3 and OP-4, by filing lesser penalty applications before the
Commission, have in a way, acknowledged and accepted their guilty anticompetitive conduct”.
The CCI held that despite the parties having raised their arguments against the finding of the
DG, by filing lesser penalty application, the parties have admitted to their anti-competitive
conduct.12
¶ [9]. Furthermore, the competition authorities from various jurisdictions have effectuated
their leniency programmes for inducing the cartel members to come forward and disclose their
cartel in return of lenient treatment.13 Certainly, many matured jurisdictions have set out
conditions for a leniency applicant and reiterated the stance of equalizing submission of a
leniency application to admission of guilt as admission of the anti-competitive conduct is one,
such as: first, Condition of admission under EU’s Leniency Regime [1]; second, Condition of
admission under UK’s Leniency Regime [2]; and third, Condition of admission under US’
Leniency Regime [3].

1. CONDITION OF ADMISSION UNDER EU’S LENIENCY REGIME

¶ [10]. The European Commission (“EC”) in its amended “Commission Notice on Immunity
from Fines and Reduction of Fines in Cartel Cases” (hereinafter referred to as “Leniency
Notice 2006”) has also determined that in pursuance to point 8, it is essential for an applicant
to “disclose its participation in the cartel.14
¶ [11]. The General Court in Gigaset AG v. Commission,15 in its paragraphs 218 and 224,
embarked upon the point and subsequently led to amendment Leniency Notice in 2006, which
now requires that a leniency applicant has to admit its involvement in the guilty anti-competitive
conduct. Merely providing evidence that constitutes significant added value compared with the
evidence in the EC’s possession was considered to be insufficient and thus, there has to be
admission of guilt.16

11
Suo Moto Case No 06 of 2017, In Re: Alleged anti-competitive conduct in the Beer Market in India, at ¶ 171
(decided on Sept. 24, 2021).
12
Id.
13
ABIR JOY AND JAYANT KUMAR, COMPETITION LAW IN INDIA (Eastern Law House, 2nd ed. 2008).
14
Commission Notice on Immunity from fines and reduction of fines in cartel cases, 2006 O.J. (C 298) 11, ¶ 8
[hereinafter Leniency Notice 2006].
15
Case T-395/09, Gigaset AG v. Commission, 2014 E.C.R. I-0000.
16
S. Suurnäkki and M. L. Tierno Centella, Commission adopts revised Leniency Notice to reward companies
that report hard-core cartels 1 COMPETITION POLICY NEWSLETTER, 7-15 (2007).
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2. CONDITION OF ADMISSION UNDER UK’S LENIENCY REGIME

¶ [12]. In United Kingdom (“UK”), § 188 of the Enterprises Act, 2002 considers the cartel
agreement between enterprises or individuals which/who fix prices, limits supply or
production, share markets or rig bids in the UK as criminal offence. 17 Subsequently, like India,
Competition and Market Authority (hereinafter referred to as “CMA”), has issued “OFT’s
Guidance as to the Appropriate Amount of a Penalty” (hereinafter referred to as “OFT Penalty
Guidance”).18
¶ [13]. According to erstwhile Office of Fair Trading (hereinafter referred to as
“OFT”), a leniency applicant has to fulfil the conditions mentioned in point 3.13 of OFT
Penalty Guidance. Point 3.13(a) states that the undertaking must “accept that the undertaking
participated in cartel activity”.19
¶ [14]. The OFT Penalty Guidance was later undertaken by the CMA in the name of “Guidance
as to the Appropriate Amount of a Penalty” (hereinafter referred to as “CMA Penalty
Guidance”).20 The incumbent CMA Penalty Guidance sets out that the conditions of leniency
application are further elaborated in “CMA’s Guidance Applications for Leniency and No-
Action in Cartel Cases” (hereinafter referred to as “CMA Leniency Guidance”).21 CMA
Leniency Guidance, through its paragraph 4.22, clearly states that there must be genuine
intention to confess for which acceptance of engagement in cartel conduct is necessary.22
¶ [15]. Following that, the CMA Leniency Guidance also clarifies on the situation where an
undertaking, which is part of cartel, in its leniency application agrees to provide evidence
against the cartel however does not admit to their engagement in cartel activity. 23 The CMA
Leniency Guidance upholds that the requirement of ‘genuine intention to confess’ remains

17
The Enterprises Act, (2002), c. 40, § 188.
18
Napp Pharmaceutical Holdings Limited and Subsidiaries v. Director General of Fair Trading, (2002) CAT 1.
19
CMA73 CMA’s Guidance as to the Appropriate Amount of a Penalty § 3.13(a) (2021)
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1041018/C
MA73-_1.PDF.
20
JACQUES BUHART, LENIENCY REGIMES (Sweet & Maxwell, 5th ed. 2015).
21
CMA73 CMA’s Guidance as to the Appropriate Amount of a Penalty § 1.1 (2021)
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1041018/C
MA73-_1.PDF.
22
OFT1495 Applications for leniency and no-action in cartel cases OFT's detailed guidance on the principles
and process § 4.22 (2012)
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/284417/OF
T1495.pdf.
23
OFT1495 Applications for leniency and no-action in cartel cases OFT's detailed guidance on the principles
and process § 5.11 (2012)
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/284417/OF
T1495.pdf.
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 1ST NALSAR-CCI ANTITRUST MOOT COURT COMPETITION, 2022

unfulfilled if the applicants believe that they have basic facts regarding the cartel however
denying that such facts constitute infringement.24
¶ [16]. The CMA, in case the of Supply of groundworks products to the construction
industry,25 through its paragraph 2.38, highlighted that the CMA shall grant immunity to the
applicant once the conditions mentioned under paragraph 3.13 of CMA Penalty Guidance are
fulfilled, which includes inter alia admission of guilt.

3. CONDITION OF ADMISSION UNDER US’ LENIENCY REGIME

¶ [17]. The Antitrust Division of the US Department of Justice (hereinafter referred to as

“DoJ”) had issued its Corporate Leniency/Amnesty/Immunity Policy (hereinafter referred to
as “DoJ Leniency Policy”).26 According the DoJ through its “Frequently Asked Questions
About The Antitrust Division’s Leniency Program And Model Leniency Letters” has clarified
in its Question 5 that “the applicant must admit its participation in a criminal antitrust violation
involving price fixing, bid rigging, capacity restriction, or allocation of markets, customers, or
sales or production volumes, before it will receive a conditional leniency letter”.27
¶ [18]. Therefore, by taking all the above-mentioned observations into account, it can be drawn
that the leniency applicant must accept its involvement in the cartel and admit to its guilty anti-
competitive conduct or violation under § 3 when the lesser penalty application is filed. Thus,
such admission will thereby forfeit the applicant to subsequently challenge the finding of
violation under § 3(3)(a) of the Act.

B. FOLLOWING ADMISSION, ALLOWING A LENIENCY APPLICANT TO SUBSEQUENTLY

CHALLENGE THE FINDING OF A VIOLATION WOULD DEFEAT THE OBJECTIVE OF

GRANTING LENIENCY

¶ [19]. Leniency programmes are generally a mechanism to detect hard-core cartels which
usually operate under the cloak of secrecy. 28 It aims at receiving cooperation from the
applicants in order to make the investigation plain sailing in exchange of granting reduction of

24
Id.
25
Case 50415, Decision of the Competition and Markets Authority Supply of groundworks products to the
construction industry (decided on Dec. 17, 2020).
26
US Department of Justice, Corporate Leniency Policy (Aug. 10, 1993), § 1.
27
US Department of Justice, Frequently Asked Questions About the Antitrust Division’s Leniency Program and
Model Leniency Letters (Jan. 26, 2017) § 5.
28
DAF/COMP(2012)25, LENIENCY FOR SUBSEQUENT APPLICANTS (OECD, Oct. 2012)
https://www.oecd.org/competition/Leniencyforsubsequentapplicants2012.pdf.
MEMORANDUM for PROSECUTION PAGE | 5[ARGUMENTS ADVANCED]
 1ST NALSAR-CCI ANTITRUST MOOT COURT COMPETITION, 2022

penalty.29 It is a mutual benefit scheme as the process of investigation for any Commission
becomes easier with the cooperation of cartel members in establishing the cartel and the
applicants are offered immunity from amount of penalty.30
¶ [20]. In order to attain the objective, the CCV obliges the participants of cartel to cooperate
as it creates administrative regularity/stability throughout the process. Appositely, if such
challenge is allowed then: first, it will amount to self-contradiction which hinders the obligation
to cooperate [1]; and second, challenging the violation would lead to failure of “Prisoner’s
Dilemma” [2].

1. IT WILL AMOUNT TO SELF-CONTRADICTION WHICH HINDERS THE OBLIGATION TO

COOPERATE

¶ [21]. The obligation to cooperate means that an applicant is required to cooperate throughout
the investigation.31 It requires the applicant to help the authorities genuinely, fully,
continuously and expeditiously not only till the time the complete investigation is carried out
but also to further to other proceedings, if any. 32 The EC also mentions the requirement of
genuine, full, continuous and expeditious cooperation under point 12(1) of the Leniency Notice
2006.33
¶ [22]. The General Court in the case of Deltafina v. Commission,34 outlined on the term “full,
continuous and expeditious cooperation”. It stated that grant of leniency is an exception from
liability of the members of cartel who infringed the competition rules in return of favouring the
EC in discovery and investigation of cartel. Under these circumstances, it is necessary for an
applicant to cooperate fully i.e., in complete, absolute and unreserved sense. Furthermore, such
cooperation shall be continuous and expeditious, meaning thereby that such cooperation must
last throughout the administrative procedure. 35
¶ [23]. Elaborating upon the principle of self-contradiction, the Court of Justice of European
Union in Dansk Rørindustri and Others v. Commission,36 held that when an applicant of
leniency turns back from its acceptance, then such a conduct of the applicant cannot be regarded

29
Case C-97/08 P, Akzo Nobel NV and others v. Commission, 2009 E.C.R. I-2369.
30
Case T-111/05, UCB v. Commission, 2007 E.C.R. II-4949.
31
Case C- 301/04 P, Commission v. SGL Carbon AG, 2006 E.C.R. I- 5915.
32
S M DUGAR, GUIDE TO COMPETITION ACT, 2002 (Lexis Nexis eds., 8th ed. 2020).
33
Case C-137/07 P, Erste Group Bank and Others v. Commission, 2009 E.C.R. I-8681.
34
Case T- 12/06, Deltafina v. Commission, 2011 E.C.R. II-0000.
35
RICHARD WISH AND DAVID BAILEY, COMPETITION LAW (Oxford eds., 9th ed. 2018).
36
Case T-213/02 P, Dansk Rørindustri and Others v. Commission, 2005 E.C.R. I-5425.
MEMORANDUM for PROSECUTION PAGE | 6[ARGUMENTS ADVANCED]
 1ST NALSAR-CCI ANTITRUST MOOT COURT COMPETITION, 2022

as genuine cooperation with the Commission.

¶ [24]. Relying on the afore-mentioned case, any applicant who challenges the finding of
violation of 3(3)(a) of Act after the admission can be said to be self-contradicting its own
stance. For instance, in the present case, Arboris Tobacco Products Limited (hereinafter
referred to as “OP-2”) self-contradicts itself as it first submits the leniency application to get
benefit from the penalty and later raises objection against the finding of violation, which ceases
its obligation to cooperate.37
¶ [25]. Pertinently, first applying for leniency and then subsequently challenging the finding
of anti-competitive conduct under § 3(3)(a) is turning back from the earlier decision (of
admitting to the cartel).
¶ [26]. Similarly, in the UK, if a leniency applicant contravenes with its admission i.e., it
decides to challenge the violation, then the conditional immunity or leniency granted to the
particular applicant will stand revoked on the ground of the said challenge. 38 The rationale of
such revocation is that when the applicant challenges the violation, it turns against the
competition authorities during the investigation process and will thereby lose its genuine
intention to cooperate.39
¶ [27]. When the applicant loses its intention to cooperate, it will thereby reduce the ability of
the investigators to prosecute the members of cartel and result in creating instability in the
investigation process.40 Hence, when an applicant contravenes its admission of the guilt and
thereby loses its genuine intention to cooperate, the entire process of leniency is adversely
affected.41
¶ [28]. In entirety, such objection would hinder objective of leniency regime. Therefore,
leniency applicant cannot be allowed to challenge the finding of guilty anti-competitive
conduct as the applicant has obligation to cooperate after submitting the application.

2. CHALLENGING THE VIOLATION WOULD LEAD TO FAILURE OF “PRISONER’S DILEMMA”

¶ [29]. Challenging the violation under § 3(3)(a) creates administrative instability as it would

37
Moot Proposition ¶ 17, pg. 7-8.
38
ALISON JONES, BRENDA SUFRIN & NIAMH DUNNE, EU COMPETITION LAW: TEXT, CASES AND MATERIALS
(OUP Oxford eds.,7th ed., 2019).
39
Chantal Lavoie, South Africa's Corporate Leniency Policy: A Five-Year Review 33 WORLD COMPETITION
LAW AND ECONOMICS REVIEW 157, 141-162 (2010).
40
Case C-636/13 P, Roca Sanitario v. Commission, 2017 ECLI:EU:C:2017:56.
41
Levenstein, M and V. Suslow, Breaking Up Is Hard to Do: Determinants of Cartel Duration 54 JOURNAL OF
LAW AND ECONOMICS 472, 455-492 (2001).
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 1ST NALSAR-CCI ANTITRUST MOOT COURT COMPETITION, 2022

lead to failure of ‘Theory of Prisoner’s Dilemma’ (hereinafter referred to as “Prisoner’s

Dilemma”). The idea of the leniency program is based on the Prisoner’s Dilemma.42 In
Prisoner’s Dilemma, investigating authorities attempt to create distrust between co-offenders.43
Essentially, the authorities offer incentives to them in return of their confession of a crime. 44
Similarly, in a leniency program, any member of the cartel fearing the disclosure or for some
other reason can submit a leniency application confessing its participation and receive
immunity there-from.45
¶ [30]. The essence of Prisoner’s Dilemma, or a leniency program for that matter, lies in
creating distrust between the co-offenders/cartel members.46 A cartel member might anticipate
that other member of the cartel will make disclosure to a Competition Commission and in fear
of the same, could make the disclosure. 47 Apart from this, a cartel member would be motivated
to disclose if he is not receiving the same benefits as other members which is likely since all
the members are horizontal competitors.48
¶ [31]. Further, upon receiving a leniency application, the Commission examines the matter
and orders an investigation. 49 For instance, in the present case, Blue Andean Tobacco Volta
Limited reports about the cartel to CCV which was followed by dawn raids. 50 The members of
the cartel get the knowledge that the Commission is looking into the matter which led to filing
leniency application by Stella Tobacco Limited, Arboris Tobacco Products Limited and Venus
Cigars Limited.51
¶ [32]. Notably, in a Prisoner’s Dilemma, co-offenders are not given an opportunity to

42
R. Allendesalazar and P. Martínez-Lage, Evidence Gathered through Leniency: From the Prisoner’s Dilemma
to a Race to the Bottom, in EUROPEAN COMPETITION LAW ANNUAL 2009: THE EVALUATION OF EVIDENCE
AND ITS JUDICIAL REVIEW IN COMPETITION CASES 565 (CD Ehlermann and M Marquis eds., Hart Publishing,
2011).
43
C. HARDING AND J. JOSHUA, REGULATING CARTELS IN EUROPE 178 (Oxford University Press eds., 2nd ed.
2010).
44
Chen, Z. and P. Rey., On the Design of Leniency Programs 56 THE JOURNAL OF LAW & ECONOMICS 938,
917-957 (2013).
45
BASKARAN BALASINGHAM, THE EU LENIENCY POLICY: RECONCILING EFFECTIVENESS AND FAIRNESS 78
(Wolters Kluwer eds., 1st ed. 2017).
46
C.R. Leslie, Trust, Distrust, and Antitrust 82 TEXAS LAW REVIEW 517, 514-520 (2004).
47
VAN BAEL AND BELLIS, COMPETITION LAW OF THE EUROPEAN COMMUNITY (Wolters Kluwer eds., 6th ed.,
2004).
48
C.R. Leslie, Antitrust Amnesty, Game Theory, and Cartel Stability 31 THE JOURNAL OF CORPORATION
LAW 453, 453-455 (2006).
49
Suo Moto Case No 03 of 2014, In Re: Cartelisation in respect of tenders floated by Indian Railways for supply
of Brushless DC Fans and other electrical items (decided on Jan. 18, 2017).
50
Moot Proposition ¶ 14, pg. 6.
51
Moot Proposition ¶ 15, pg. 6.
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 1ST NALSAR-CCI ANTITRUST MOOT COURT COMPETITION, 2022

communicate with each other as they could collude.52 Similarly, in order to split the cartel
members, the in leniency scheme put up the condition to admit their anti-competitive conduct,
which in a way to seize the opportunity for the cartel members to collude. 53
¶ [33]. Subsequently, even after admission, if a leniency applicant is allowed to challenge the
violation after submission of leniency application, then other members would have the
opportunity to influence the leniency applicant to turn back on its admission.54 Resultantly, the
members would again cooperate amongst themselves and decide to escape the Commission’s
investigation.55
¶ [34]. Howbeit, if filing of a leniency application is regarded as an irrevocable acceptance of
the cartel, then the other members will not have the opportunity and capability to manipulate
the decision of the leniency applicant. 56 As a consequence, the vital disclosure by the leniency
applicant will remain unaffected. 57 Therefore, challenging the violation would lead to failure
of Prisoners Dilemma.
¶ [35]. Thus, allowing a leniency applicant to subsequently challenge the finding of a violation
would defeat the process of granting leniency as it would amount to self-contradiction which
goes against the obligation to cooperate and violates the concept of Prisoners Dilemma.
¶ [36]. Ergo, it is humbly submitted that a leniency applicant subsequently cannot challenge
the finding of a violation under § 3(3)(a) of the Act as submission of leniency application is
equivalent to acceptance of guilt and allowing a leniency applicant to subsequently challenge
the finding of a violation would defeat the process of granting leniency.

II. THE EXCHANGE OF PRICE SENSITIVE INFORMATION IN THE CONTEXT OF THE

PRESENT CASE AMOUNTS TO A VIOLATION OF § 3(3)(A) OF THE COMPETITION ACT

¶ [37]. It is humbly submitted before the Hon’ble CCV that the exchange of price sensitive
information in the context of the present case amounts to a violation of § 3(3)(a) of the

52
Bryant, P. and E.W. Eckard, Price Fixing: The Probability of Getting Caught”, 73 THE REVIEW OF
ECONOMICS AND STATISTICS 536, 531-536 (Aug., 1991).
53
CMA, Quick Guide to Complying with Competition Law - Protecting businesses and consumers from anti-
competitive behaviour 12 (Competition & Markets Authority eds., 04/14 ed. 2019).
54
DAF/COMP/WP3/M(2018)1/ANN2, CHALLENGES AND CO-ORDINATION OF LENIENCY PROGRAMMES (OECD,
Jun. 5, 2018) https://one.oecd.org/document/DAF/COMP/WP3/M(2018)1/ANN2/en/pdf.
55
James Harrington, Optimal Corporate Leniency Programs, 56 THE JOURNAL OF INDUSTRIAL ECONOMICS 215
(2008).
56
Chen, Z. and P. Rey., On the Design of Leniency Programs 56 THE JOURNAL OF LAW & ECONOMICS 938,
917-957 (2013).
57
Michael Blatter, Optimal Leniency Programs when Firms Have Cumulative and Asymmetric Evidence, 52
REVIEW OF INDUSTRIAL ORGANIZATION 403 (2018).
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 1ST NALSAR-CCI ANTITRUST MOOT COURT COMPETITION, 2022

Competition Act. The premise of the present argument shall be in two-fold: first, there exist an
agreement to coordinate for price fixing amongst the Opposite Parties [A]; second, the
agreement is likely to cause Appreciable Adverse Effect on Competition [B].

A. THERE EXIST AN AGREEMENT TO COORDINATE FOR PRICE FIXING AMONGST THE

OPPOSITE PARTIES

¶ [38]. Notably, § 3(3)(a) of the Act deals with the agreement amongst the parties to coordinate
in relation to fixation of price, directly or indirectly. 58 The term agreement is elaborated under
§ 2(b) which includes any arrangement, understanding or action in concert. 59 In terms of hard-
core cartels, it is difficult to find any formal or direct evidence of agreement. 60 The Competition
Authorities thus look into concerted practices of the enterprises or individuals in order to
provide proof of agreement.61
¶ [39]. The Hon’ble Supreme Court of India highlighted the concept of “Action in Concert” in
the case of Technip SA v. SMS Holding (P) Ltd. & Ors.,62 and observed that it is usually
difficult an actual evidence for concerted action; thus, the standard of proof is such that it is
not necessary to establish whether they have actually acted in concerted manner but to provide
circumstantial evidence that enables a reasonable man to conclude that the enterprises have
been acting together.63
¶ [40]. Pertinently, the exchange of price sensitive information along with presence of price
parallelism is that circumstantial evidence that indicates concludes concerted actions between
the undertakings.64 The relevant evidences to indicate concerted actions of the enterprises, in
the present case, to fix price are: first, Exchange of ‘Price Sensitive Information’ [1]; and
second, Price Parallelism [2].

1. EXCHANGE OF PRICE SENSITIVE INFORMATION

¶ [41]. The sharing of price sensitive information in the present case indicates that the OPs

58
Competition Act, 2002, § 3(3)(a).
59
Competition Act, 2002, § 2(b).
60
VAN BAEL AND BELLIS, COMPETITION LAW OF THE EUROPEAN COMMUNITY (Wolters Kluwer eds., 6th ed.,
2004).
61
Suo Moto Case No. 10 of 2014, In Re: Cartelisation by Shipping Lines in the matter of provision of Maritime
Motor Vehicle Transport Services to the Original Equipment Manufacturers, (Decided on Jan. 20, 2022)
[hereinafter Shipping Cartel Case].
62
Technip SA v. SMS Holding (P) Ltd. & Ors., (2005) 5 SCC 465.
63
Id.
64
GAUTAM SHAHI, INDIAN COMPETITION LAW (Taxman, 1st ed. 2021)
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 1ST NALSAR-CCI ANTITRUST MOOT COURT COMPETITION, 2022

have acted in concerted manner. Exchange of price sensitive information is an indicator of

coordination amongst undertakings to fix price. 65 In the case of Ambuja Cements Limited v.
Competition Commission of India & Ors.,66 the NCLAT of India upheld that action in concert
is form of coordination amongst enterprises, without having reached to a proper agreement,
which harms the competition.
¶ [42]. Exchange of price sensitive information enables enterprises to collude by allowing them
to form coordination, track adherence to coordinated behaviour, and efficiently penalise any
deviations.67 Appositely, sharing of sensitive information is a concerted practice when it can
reduce strategic uncertainties. 68 Strategic uncertainties refer to a situation where the
undertakings cannot determine the possible outcomes of their competitors’ actions. 69 Exchange
of pricing information brings strategic certainty in the market which thereby harms the
competition.70
¶ [43]. Moreover, in the case of T-Mobile Netherlands BV v. Raas van bestuur van de
Nederlandse Mededingingsautoriteit,71 the EC upheld that even a single instance of sharing
of price sensitive information with an objective to restrict competition can be a proof of
concerted practice.
¶ [44]. In the present case, the OPs have shared price sensitive information via e-mail. E-mail
from Annexure -1 under the subject of “Price Book.1.xls.”.72 It points out that the OPs have
shared their tentative price list which is circulated between Stella Tobacco Limited (hereinafter
referred to as “OP-1”), Arboris Tobacco Products Limited (hereinafter referred to as “OP-2”),
Venus Cigars Limited (hereinafter referred to as “OP-3”), Blue Andean Tobacco Volta
Limited (hereinafter referred to as “OP-4”).73 The OPs has no plausible explanation of sharing
their tentative price list with each other.
¶ [45]. Furthermore, the Voltan Tobacco Association (hereinafter referred to as “OP-5”) is

65
S M DUGAR, GUIDE TO COMPETITION ACT, 2002 (Lexis Nexis eds., 8th ed. 2020).
66
Ambuja Cements Limited v. Competition Commission of India & Ors., Appeal No. TA(AT) (Compt) No.22
of 2017 (NCLAT).
67
DAF/COMP (2010) 37, INFORMATION EXCHANGES BETWEEN COMPETITORS UNDER COMPETITION LAW
(OECD, Jul.11, 2011) https://www.oecd.org/competition/cartels/48379006.pdf.
68
Case C-40/73, Coöperatieve Vereniging "Suiker Unie" UA and others v. Commission of the European
Communities, 1975 E.C.R. I-1663.
69
Commission Guidelines, Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the
European Union to horizontal co-operation agreements, 2011 O.J. (C11) 1.
70
DAF/COMP (2010) 37, INFORMATION EXCHANGES BETWEEN COMPETITORS UNDER COMPETITION LAW
(OECD, Jul.11, 2011) https://www.oecd.org/competition/cartels/48379006.pdf.
71
Case C-8/08 P, T-Mobile Netherlands BV v. Raas Van Bestuur Van De Nederlandse Mededingingsautoriteit,
ECLI:EU:C:2009:343.
72
Moot Proposition Annexure 1, pg. 20-23.
73
Id.
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responsible for sharing price sensitive information with the OPs. The CCI in In Re: Alleged
anti-competitive conduct in the Beer Market in India case,74 stated that the role of association
is to raise common issues and grievances but when it goes beyond the power to indulge in
collection and dissemination of commercially sensitive information between its members, it
contravenes § 3(3)(a).
¶ [46]. In the present case, OP-5 has been established to discuss the issues which affect the
Tobacco industry and present a united front against government to negotiate industry’s plight. 75
However, it went beyond its purpose as it not only collected commercially sensitive
information but also shared it among OP-1, OP-2, OP-3and OP-4, to which the OP-5 has no
plausible reason to explain. 76
¶ [47]. Thus, the sharing of price sensitive information in the present case indicates that the
OPs have acted in concerted manner and thereby comes under the definition of agreement as
per § 2(b) of the Act.

2. PRICE PARALLELISM

¶ [48]. The action of OPs to keep their prices parallel to each other in the present case indicates
collusion. Price parallelism is a result of concerted action.77 In the case of Builders Association
of India v. Cement Manufactures Association,78 the CCI held that price parallelism is a
reflection of collusive behaviour in light of the fact that the competitors have exchanged
commercially sensitive information.
¶ [49]. In the present case, the DG has found several emails exchanges of Ms. Sanya Das with
her counterparts in the OPs companies discussing the need for a coordinated price increase of
packed cigarettes. 79 Moreover, DG has further noted that OPs have coordinated with each other
while revising the prices of various products which thereby showed that these prices were
extremely close or were in complete tandem. 80
¶ [50]. The CCI in the In Re: Alleged anti-competitive conduct in the Beer Market in India

74
Suo Moto Case No 06 of 2017, In Re: Alleged anti-competitive conduct in the Beer Market in India, at ¶ 171
(decided on Sept. 24, 2021).
75
Moot Proposition ¶ 7, pg. 3.
76
Moot Proposition Annexure 1, pg. 21-23.
77
ABIR JOY AND JAYANT KUMAR, COMPETITION LAW IN INDIA (Eastern Law House, 2nd ed. 2008).
78
Builders Association of India v. Cement Manufactures Association, 2012 Comp LR 629 (CCI).
79
Moot Proposition ¶ 16, pg. 7.
80
Id.
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case,81 upheld that evidence showing identical price increase request from the State
Corporation is result of the co-ordination between the undertakings.
¶ [51]. In the present case, the OPs have coordinated their price between 2015 to September
2020. Email from Annexure -1 under the subject of “RE: Negotiations for Price Hike” points
out that the OPs have coordinated to fix the price of cigarette. 82 Ms. Sanya Das, from Arboris,
shares the hike of 20 pack, long cigarette at 82 Voltan Francs with Mr. James Vellanki of Stella,
Mr. Atul Lender of Venus and Mr. Karl Willhem of BAT, to which they all agreed. 83
¶ [52]. Furthermore, In Re: Alleged anti-competitive conduct in the Beer Market in India
case,84 the beer companies requested State to hike the price of beers by 7.5% through the
platform of association; to which the CCI upheld that the companies were taking advantage of
free pricing policy through platform of association.
¶ [53]. In the present case, the email under the subject of “RE: Negotiations for Price Hike”
highlights that the OPs decided on certain price hike through the platform of OP-5 and took
undue advantage in the guise of free pricing policy of Federal Trade Authority (hereinafter
referred to as “FTA”).85
¶ [54]. Furthermore, the Supreme Court of India in Rajasthan Cylinder and Containers Ltd.
v. Union of India,86 stated that in a condition of oligopsony, price parallelism has to be
supported by corroborative evidence of effect on the competitors in order to display the
concerted practice.
¶ [55]. In the present case, Supersniffs Private Limited (hereinafter referred to as
“Supersniffs”), Tigris Industries Limited (hereinafter referred to as “Tigris”) and Klaus
Tobacco Limited (hereinafter referred to as “Klaus”) were the existing in the market up till
2019-2020.87 However, the price parallelism of OPs has resulted in driving existing
competitors out of the market. 88 Additionally, the market share Pollock & Morset International
Volta Limited (hereinafter referred to as “PMI”) has drastically reduced from 2015-2020.89
¶ [56]. Thus, the price parallel behaviour along with the impact on the competitors in the

81
Suo Moto Case No 06 of 2017, In Re: Alleged anti-competitive conduct in the Beer Market in India, at ¶ 171
(decided on Sept. 24, 2021).
82
Moot Proposition Annexure 1, pg. 20-21.
83
Moot Proposition Annexure 1, pg. 20.
84
Suo Moto Case No 06 of 2017, In Re: Alleged anti-competitive conduct in the Beer Market in India, at ¶ 171
(decided on Sept. 24, 2021).
85
Moot Proposition Annexure 1, pg. 20.
86
Rajasthan Cylinder and Containers Ltd. v. Union of India, (2020) 16 SCC 615.
87
Moot Proposition Appendix 1, pg. 11.
88
Moot Proposition ¶ 12, pg. 5.
89
Moot Proposition Appendix 1, pg. 10-11.
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present case indicates that the OPs have acted in concerted manner and thereby comes under
the definition of agreement as per § 2(b) of the Act.
¶ [57]. Therefore, it action of OPs to keep their prices parallel to each other in the present case
indicates collusion, especially when there is presence of sharing of price sensitive information.
Therefore, both the evidences together indicate that the OPs were in agreement to coordinate
price fixing of various products in tobacco industry.

B. THE AGREEMENT IS LIKELY TO CAUSE APPRECIABLE ADVERSE EFFECT ON

COMPETITION

¶ [58]. The agreement between the OPs is likely to cause Appreciable Adverse Effect on
Competition (hereinafter referred to as “AAEC”) in the market. Any agreement which causes
or likely to cause Appreciable Adverse Effect on Competition (hereinafter referred to as
“AAEC”) on the competition are in contravention of § 3(1) of the Act.90 The AAEC is
examined by the CCV through the factors enlisted under § 19(3) of the Act.91 Notably, the
agreements under § 3(3) are presumed to have AAEC in the market.92
¶ [59]. Pertinently, one of the factors under § 19(3) is “driving existing competitors out of the
market”. In the present case, the agreement amongst the OPs has resulted in exclusion of Klaus,
Tigris and Supersniffs as mentioned under ¶[55]. Notably, during the cartel period of 2015-
2020, it can be seen that the market shares of these players along with PMI has drastically
reduced leading to their exclusion before 2020, causing AAEC in the market. 93
¶ [60]. Furthermore, § 3(3) does not have sine qua non of implementation of the agreement or
actual causing AAEC in order to prove impugned agreement as anti-competitive and in
contravention of the Act.94 Particularly, a pre-requisite of implementation is not necessary as §
3(1) prohibits not only agreements which actually causes AAEC in the market but also the
agreements which are ‘likely to cause’ AAEC.95
¶ [61]. In the case of Builders Association of India v. Cement Manufactures Association,96

90
Neeraj Malhotra v. Deustche Post Bank Home Finance, Case No. 5 of 2009 (CCI).
91
Aditya Bhattacharjea, Cartels and the Competition Commission, 47 ECONOMIC AND POLITICAL WEEKLY 14
(2012).
92
Competition Act 2002, § 3(3).
93
Moot Proposition ¶ 2, pg. 2, 10-11.
94
Suo Motu Case No. 05 of 2017, In Re: Cartelisation in Industrial and Automotive Bearings, (decided on Jun.
06, 2020).
95
Matthew Bennet and Philip Collins, The Law and Economics of Information Sharing: The Good, the Bad and
the Ugly, 5 EUROPEAN COMPETITION JOURNAL 311 (2010).
96
Builders Association of India v. Cement Manufactures Association, (2012) Comp LR 629 (CCI).
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the CCI upheld that the mere exchange of price sensitive information between the companies
compromised the integrity of fair competition and therefore was likely to cause AAEC in the
market.
¶ [62]. In the present case, the OPs have exchanged dispatch quantity information, different
prices (like cost price and mark-up price), profit margins, market share forecast, and residual
unsold inventory on routine basis.97 These pieces of information are price sensitive in nature
which have the capability of compromising the competition; thereby likely to cause AAEC.98
¶ [63]. In arguendo, assuming but not conceding that if implementation is sine qua non for
establishing contravention then the act of OPs to submit the coordinated price hike to FTA
automatically amounts to implementation. The CCI in In Re: Alleged anti-competitive conduct
in the Beer Market in India case,99 stated that once the price revision request has been
submitted to the State Corporation in furtherance of the discussions, implementation of the
coordination stands complete.
¶ [64]. In the present case, the OPs collectively decided on the price hike and subsequently
submitted their request to the FTA. 100 The implementation on the part of OPs stood complete
as now the FTA shall decide on the request. It was FTA which did not accept request but the
actions of the part of OPs shall be understood as implemented. 101
¶ [65]. Furthermore, disclosure of pricing intention would have the likeliness can constitute
contravention of § 3(1) of the Act. In the case of Fresh Del Monte Produce v. Commission,102
the EC took a clear stance that mere disclosure of intention or attempt to coordinate on sensitive
information with competitors can constitute anti-competitive behaviour.
¶ [66]. In the present case, routinely email exchanges and WhatsApp messages on price
sensitive information; the emails of Ms. Sanya Das of OP-2, stating the need of coordinated
prices; and, oral depositions of representatives of OPs admitting to discuss prices and making
attempt to standardise it.103 It collectively gives impression of intention to coordinate pricing.
¶ [67]. Moreover, In Re: Alleged anti-competitive conduct in the Beer Market in India

97
Moot Proposition Annexure 1-2, pg. 21-24.
98
Case C-74/14 P, "Eturas" UAB and Others v Lietuvos Respublikos konkurencijos taryba,
ECLI:EU:C:2016:42.
99
Suo Moto Case No 06 of 2017, In Re: Alleged anti-competitive conduct in the Beer Market in India, at ¶ 171
(decided on Sept. 24, 2021).
100
Moot Proposition Annexure 1, pg. 20.
101
Moot Proposition ¶ 17, pg. 7.
102
Case C-293/13 P, Fresh Del Monte Produce v. Commission, ECLI:EU:C:2015:416.
103
Moot Proposition ¶ 12, pg. 5.
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case,104 the CCI mentioned that the agreement to disrupt supply even in response to alter price
rates against State amounts to contravention of § 3(3).
¶ [68]. In the present case, email exchanges of Ms. Sanya Das of OP-2 to its counterparts in
the OPs’ companies states that the OPs intended to stop the supply of packed cigarettes in the
market till the time FTA accepts the request of price hike.105 These decisions of OPs clearly
contravene § 3(3) as it has likeliness to cause AAEC.
¶ [69]. Therefore, the exchange of price sensitive information amongst OPs is likely to cause
AAEC as the OPs have colluded on several events and coordinated in many instances in order
to fix price on the basis of the information shared as contended in ¶ [63] – ¶ [69].
¶ [70]. Thus, there exists an agreement to coordinate for price fixing amongst the Opposite
Parties as the OPs have shared price sensitive information with each other and behaved in
parallel manner and such agreement is likely to cause AAEC.
¶ [71]. Ergo, it is most humbly submitted that the exchange of price sensitive information in
the context of the present case amounts to a violation of § 3(3)(a) of the Competition Act.

III. IMPERIAL AND BAT CAN BE CONSIDERED AS PART OF THE SINGLE ECONOMIC
ENTITY FOR THE PURPOSES OF THE PRESENT CARTEL

¶ [72]. It is humbly submitted that Voltan Imperial Limited (hereinafter referred to as “OP-5”)
and OP-4 constituted a part of the Single Economic Entity (hereinafter referred to as “SEE”)
for the purpose of this cartel. The premise of the present issue is two-fold: Imperial does not
act independently of BAT [A]; BAT and Imperial acted as a SEE for the purpose of the cartel
[B].

A. THE ENTITIES CONSTITUTE SEE BECAUSE IMPERIAL DOES NOT ACT INDEPENDENTLY OF
BAT

¶ [73]. In the case of Mausegatt v. Haute autorite,106 the EC observed that two entities
constitute SEE when one of them does not act independently of another. In a catena of
judgments, the Hon’ble CCI has applied the concept of SEE to anti-competitive agreements
under § 3.107 Notably, the dependency of an enterprise over the other is determined through its

104
Suo Moto Case No 06 of 2017, In Re: Alleged anti-competitive conduct in the Beer Market in India, at ¶ 171
(decided on Sept. 24, 2021).
105
Moot Proposition ¶ 16, pg. 7.
106
Case C-13/60, Mausegatt v. Haute autorite, ECLI:EU:C:1962:15.
107
Exclusive Motors Pvt Limited v. Automobili Lamborghini S.P.A, Case No. 52 of 2012 (CCI).
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ability to take independent decisions 108 and the inseparability of economic interest. 109
¶ [74]. In the present case, BAT and Imperial constitute SEE as Imperial does not act
independently of BAT. The argument is substantiated in two limbs: BAT has control over
Imperial’s decision-making power (a); there is inseparability of economic interest (b).

1. BAT HAS CONTROL OVER IMPERIAL’S DECISION-MAKING POWER

¶ [75]. In the case of Bolloré SA and Others v. Commission,110 the European Court observed
that the presence of a common director in the entities is the factor that indicates that the holding
company controls the influence of the other enterprise. It was also observed that a common
director has the ability influence to the operations of an affiliated entity. It is contended in the
present case, that BAT has control over the decision-making power of Imperial owing to the
presence of a common director in the boards of these entities.
¶ [76]. In regards to this, the DG report pointed out that Imperial’s ability to take commercial
decisions pertaining to economic activities 111 such as sales, manufacturing and distribution is
compromised in the presence of a common director. It is thus contended that BAT hold control
over decisions pertaining to economic activities of Imperial.
¶ [77]. Further, in the case of Builders Association of India v. Cement Manufacturers'
Association, the Hon’ble CCI observed that the ability to control the matters of the affiliated
enterprise is inferred from the holding company’s veto/special rights. In the present case, BAT
holds veto rights in the matters of Imperial related to corporate restructuring, acquisition and
introduction of new businesses. It is contended that these veto rights confer upon BAT the
power to control the decisions of Imperial.
¶ [78]. In Copperweld Corp. v. Independence Tube Corp,112 the Court observed that corporate
restructuring power confers upon the holding company the ability to structure affiliated
company, in particular, selection of officers, day-to-day operations, and so forth. It was also
observed that when the holding company can structure the other entity, they are determined as
a SEE and any further examination in this regard becomes futile.
¶ [79]. It is thus contended that veto rights over the matters of corporate restructuring confer
upon BAT the power to control the operations of Imperial. As a result, Imperial cannot decide

108
Case C-90/09 P, General Química and Others v. Commission, EU:C:2011:21.
109
Case C-13/60, Mausegatt v. Haute autorite, ECLI:EU:C:1962:15.
110
Case T-109/02, Bolloré SA and Others v. Commission of the European Communities, 2007 E.C.R. II-00947.
111
India Glycols Ltd. v. Indian Sugar Mills Association, Case No. 94 of 2014 (CCI).
112
Copperweld Corp. v. Independence Tube Corp, 467 U.S. 752 (1984).
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to restructure its operation without receiving approval from BAT.

¶ [80]. It may be noted that Imperial is the Voltan subsidiary of Imperial B.V.; however, in the
Ultratech Cement Ltd,113 the CCI has categorically stated that an enterprise can be controlled
by more than one enterprise. Hence, the fact that Imperial is a subsidiary of another entity does
not entail that BAT cannot have control over Imperial.
¶ [81]. Therefore, it is apparent that BAT holds control over the decision-making power of
Imperial owing to the presence of a common director and veto rights.

2. THERE IS INSEPARABILITY OF ECONOMIC INTEREST

¶ [82]. In the case of Shamsher Kataria v. Honda Siel & Ors.,114 the CCI observed that in
determining whether two entities constitute, regard must be given to the inseparability of
economic interest between the entities. The inseparability is established when one entity is
economically dependent upon the other entity. 115
¶ [83]. In the present case, Imperial decided to consolidate with BAT for economic reasons, as
it was facing trouble in dealing with the incidence of taxation. Notably, before the year of
consolidation, Imperial’s market share was drastically reduced by 50%. 116
¶ [84]. Further, the entities are considered to have the same economic scheme when the
commercial decisions of one enterprise are taken by the holding enterprise. 117 In the present
case, as contended earlier, BAT has control over Imperial’s decision-making power. Therefore,
BAT and Imperial follow the same economic scheme.
¶ [85]. It is further submitted that the presence of a common director can be used by the holding
company to bring the business of the affiliated company in line with the former. 118 It is
contended in the present case, the presence of a common director can be used by BAT to make
Imperial to follow the same economic scheme. In this regard, BAT can also derive ability from
its 40% stake in Imperial and power to appoint two directors in the board of imperial.
¶ [86]. Therefore, in the present case, there is inseparability of economic interest owing to
economic dependency, same economic scheme, and presence of a common director.
¶ [87]. Thus, it is apparent that in the present case, Imperial cannot act independently of BAT

113
UltraTech Cement Limited/Jaiprakash Associates Limited, C-2015/02/246 (CCI).
114
Shamsher Kataria v. Honda Siel & Ors., Case No. 03 of 2011 (CCI).
115
Id.
116
Moot Proposition ¶ 11, pg. 4.
117
Case C-13/60, Mausegatt v. Haute autorite, ECLI:EU:C:1962:15.
118
Copperweld Corp. v. Independence Tube Corp, 467 U.S. 752 (1984)
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since there is no separability of economic interest and BAT’s control over Imperial’s
commercial decisions.

B. BAT AND IMPERIAL ACTED AS A SEE FOR THE PURPOSE OF THE CARTEL

¶ [88]. In the landmark case of American Needle, Inc. v. National Football League,119 the US
Supreme Court observed that entities can be SEE for one purpose but not for another purpose.
Therefore, the more pertinent question is whether BAT and Imperial constituted SEE for the
purpose of the present cartel. Hence, it is further argued that if the CCV does not find the
concerned entities as SEE in a general sense or for a particular purpose, it must find them as
SEE for the purpose of the cartel based on the contentions presented below.
¶ [89]. Pertinently, BAT and Imperial constituted SEE especially for the purpose of the cartel
as Imperial participated in the cartel through BAT. It may be noted that BAT has argued that it
does not share a unity of economic interest with Imperial; nonetheless, this aspect is not
relevant for answering the question raised by the CCV. Having a unity of interest demonstrates
that the parent has control over the operational activities of the subsidiary. 120 However, in the
present case, the question categorically pertains to the operation of BAT and Imperial with
respect to the purpose of the cartel.
¶ [90]. Though Imperial has denied its participation in the cartel, its representative admitted to
having met with representatives of other OPs with an intent to standardize prices. 121 Further,
Imperial need not be an active participant in the cartel since it can participate through BAT as
will be established below.
¶ [91]. Notably, the question of entities constituting SEE is a mixed question of law and
facts.122 Thus, special regard is given to operational activities 123, in particular, how entities have
acted in light of the alleged violation.
¶ [92]. In the case of Justickets Pvt. Ltd v. Big Tree Entertainment Pvt. Ltd.,124 the issue was
whether the opposite parties have committed refusal to deal by denying access to the informant.
It was found that the access provider, who was one of the opposite parties, used to take the
approval of another opposite party before granting access.

119
American Needle, Inc. v. National Football League, 560 U.S. 183 (2010).
120
American Tobacco Co. v. United States, 328 U.S. 781 (1946).
121
Moot Proposition ¶ 12, pg. 5.
122
Shri Shamsher Kataria v. Honda Siel Cars India Ltd., Case No. 03/2011 (CCI).
123
Meru Travel Solutions Pvt. Ltd. v. M/s ANI Technologies Pvt. Ltd., Case No. 25-28 of 2017 (CCI).
124
Justickets Pvt. Ltd. v. Big Tree Entertainment Pvt. Ltd., Case No. 08 of 2016 (CCI).
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¶ [93]. It was observed in the dissent note of the aforementioned case that though there was no
legal or structural relation between the opposite parties, they were found to constitute SEE on
the basis of how they operated in the market.125 Further, in the case of Meru v. ANI
Technologies Pvt. Ltd. and Ors.,126 the CCI observed that operational realities are more telling
than the legal relationship between entities.
¶ [94]. In the instant case, the question is of whether BAT and Imperial constituted SEE for
the purpose of the cartel. Notably, the cartel is alleged to have been formed under § 3(3)(a) of
the Act which prohibits an agreement to directly or indirectly determine prices.
¶ [95]. It is pertinent to note that constituting SEE for the purpose of determining prices would
mean one entity did not act independently in determining its prices but followed the pricing
scheme practiced by the holding entity. Further, if the parent entity has determined its prices in
contravention of the said provision, such contravention must extend to the affiliated entity that
has followed the pricing scheme of its holding entity.127
¶ [96]. In the present case, the DG Report found that the OPs operated in complete tandem
with respect to revising prices for the period of 2015-2020.128 The report found that price
revisions of products of the OPs including BAT and Imperial were extremely close to each
other. As noted in the report, this is demonstrative of price coordination.
¶ [97]. Notably, in 2014, Imperial left the VTA which was used to exchange price-sensitive
information during the cartel period of 2015-2020. It remains unclear how Imperial managed
to match the prices of other OPs without being part of the VTA. In line with this, it is derived
that the circumstances indicate that BAT must have shared price-sensitive information with
Imperial which resulted in the latter’s participation in price coordination.
¶ [98]. Alternatively, the common director could have acted as a vehicle for effecting price
coordination on the part of Imperial. In the case of Meru Travel Solutions v. ANI Technolgies
Pvt. Ltd.,129 the CCI observed that the presence of a common member in two competing
companies can cause exchange of sharing sensitive information between those entities leading
to tacit collusion.130 Also, in United States v. Ebay Inc,131 the Court observed that a common
director can facilitate price coordination between competing entities.

125
Id.
126
Meru Travel Solutions Pvt. Ltd. v. M/s ANI Technologies Pvt. Ltd., Case No. 25-28 of 2017 (CCI).
127
Case T-109/02, Bolloré SA and Others v. Commission of the European Communities, 2007 E.C.R. II-00947.
128
Moot Proposition ¶ 12, pg. 5.
129
Meru Travel Solutions Pvt. Ltd. v. M/s ANI Technologies Pvt. Ltd., Case No. 25-28 of 2017 (CCI).
130
Meru Travel Solutions Pvt. Ltd. v. M/s ANI Technologies Pvt. Ltd., Case No. 25-28 of 2017 (CCI); Builders
Association of India v. Cement Manufacturers' Association, Case No. 29 of 2010 (CCI).
131
United States v. Ebay, Inc., 968 F.Supp.2d 1030 (N.D. Cal. 2013).
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¶ [99]. Furthermore, in ascertaining the constitution of SEE, it is not essential to produce

evidence that the parent has instructed its subsidiary to revise its prices. 132 Instead, only
indicators are to be produced before the judicial authorities, which signify that the entities acted
in a similar fashion. 133 Pertinently, the presence of a common director is one of such
indicators.134
¶ [100]. Further, in All India Tyre Dealer’s Federation v. Tyre Manufacturers,135 the CCI
observed that an agreement or collusion can be established on the basis of circumstantial
evidence. Circumstantial evidence includes the conduct of market participants indicating
concerted action.136 Further, when market participants have coordinated, it exhibits that price-
sensitive information was shared between the parties. 137 Moreover, Stella,138 Venus139 and
BAT140 have agreed to the finding of price coordination and sharing of price-sensitive
information.
¶ [101]. As mentioned earlier, Imperial had left the VTA before the cartel period. 141 Also, no
email of price pitch, price book, or tentative price list was sent to Imperial.142 Thus, the relevant
question is how Imperial was able to coordinate prices. In light of this, there are two
derivations.
¶ [102]. It is derived that either BAT has shared price-sensitive information with Imperial or
the common director has facilitated price coordination from Imperial. From either of these
derivations, it is conclusive that Imperial participated in the cartel through its holding company,
BAT. Notably, entities constitute SEE when the subsidiary company does not act
independently or as an autonomous market participant but adheres to the scheme of its
parent.143 Therefore, BAT and Imperial constituted SEE for setting prices.
¶ [103]. Further, in any of the above derivations, BAT determined prices directly or indirectly
for Imperial’s products for the period of at least four years i.e., 2015-2020. Thus, as far as
setting prices is concerned, Imperial did not act on its volition or as an independent market

132
Case T-354/94, Stora Kopparbergs Bergslags v. Commission, 1998 E.C.R. II-02111.
133
Id.
134
Case T-109/02, Bolloré SA and Others v. Commission of the European Communities, 2007 E.C.R. II-00947.
135
All India Tyre Dealers’ Federation v. Tyre Manufacturers, RTPE No. 20 of 2008 (CCI).
136
Ministry of Corporate Affairs v. Apollo Tyres Ltd., Case No. 08 of 2013 (CCI).
137
Id.
138
Moot Proposition ¶ 16, pg. 6.
139
Id.
140
Moot Proposition ¶ 15, pg. 6.
141
Moot Proposition ¶ 8, pg. 3.
142
Moot Proposition ¶ 15, pg. 6.
143
NADA INA PAUER, THE SINGLE ECONOMIC DOCTRINE AND CORPORATE GROUP RESPONSIBILITY IN EUROPEAN
ANTITRUST LAW 84 (Kluwer Law International eds., 2014).
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participant. Further, Imperial could have publicly distanced 144 itself from participating in the
cartel but it coordinated prices instead. 145
¶ [104]. Thus, it is apparent that BAT and Imperial acted as a SEE for the purpose of the cartel
as, during the period of the cartel, BAT determined the prices charged by Imperial.
¶ [105]. Ergo, it is humbly submitted that BAT and Imperial constituted a SEE for the purpose
of the cartel.

IV. IF BAT AND IMPERIAL ARE A SEE FOR THE PRESENT CARTEL THEN CCV SHOULD
NOT EXTEND A SIMILAR PERCENTAGE OF REDUCTION IN PENALTY TO IMPERIAL IF BAT’S

LENIENCY APPLICATION IS SUCCESSFUL.

¶ [106]. It is humbly submitted before the Hon’ble CCV that if BAT and Imperial are a SEE
for the purpose of the present cartel then a similar percentage of reduction in penalty shall not
be granted to Imperial if BAT’s leniency application is successful. The premise of the present
submission is two-fold: [A] The Leniency Application of BAT is not equal to the Leniency
Application of Imperial and; [B] In arguendo, assuming but not conceding that BAT’s
Leniency Application extends to Imperial, Imperial has still failed to fulfil the conditions for
granting leniency.

A. THE LENIENCY APPLICATION OF BAT CANNOT BE CONSIDERED AS THE LENIENCY

APPLICATION ON BEHALF OF IMPERIAL

¶ [107]. It is humbly submitted that the leniency application of BAT is not equal to the leniency
application of Imperial. The premise for the present sub-issue is in two-fold: [1] All the
members of the cartel have to file separately for leniency and; [2] Joint Application for leniency
is not allowed under the Lesser Penalty Regulation.

1. ALL THE MEMBERS OF THE CARTEL HAVE TO FILE SEPARATELY FOR LENIENCY

¶ [108]. Any infringement under the Act is said to be committed by an Enterprise defined as
per § 2(h) of the Act.146 As per § 2(h) of the Act the word Enterprise includes, ‘A person either
legal or natural which acts either directly or indirectly through one or more of its units or

144
Mr. G. Krishnamurthy v. Karnataka Film Chamber of Commerce, Case No. 42 of 2017 (CCI).
145
Moot Proposition ¶ 12-13, pg. 5-6.
146
S M DUGAR, GUIDE TO COMPETITION ACT, 2002 (Lexis Nexis eds., 8th ed. 2020).
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divisions or subsidiaries’.147 Thereby, it goes beyond the traditional concept of company law
which considers every company to have a separate legal identity from its owners and recognises
that different juristic persons may, in certain cases, act and behave as one single entity. 148
¶ [109]. Therefore, an enterprise can be either an individual company or a corporate group
consisting of several juristic persons controlled and represented by the ultimate parent. 149
Moreover, the following definition of the word enterprise forms the first condition for separate
juristic persons to be a part of Single Economic Entity i.e. to be a part of an enterprise by being
in different types of relationship such as parent-subsidiary,150 principal-agent,151 joint-
venture,152 sister concerns having common owner, 153 etc.154
¶ [110]. However, being a part of a SEE or a single enterprise does not empower its members
to do away with the requirement laid down under the Lesser Penalty Regulation and does not
entitle them to reap benefits from each other’s conduct. 155 As the CCI in the case of In Re
Cartelisation in respect of tenders floated by Indian Railways for supply of Brushless DC
Fans and other electrical items,156 held that “the final decisions of imposing penalties upon
which leniency is granted are addressed to legal persons and not to an enterprise or a
corporate group in Cartel cases under § 3(3)(a)”.
¶ [111]. The rationale behind the same is that as per § 27(b) and its proviso clause, in cartel
cases the CCV has to penalise all the persons, producer, seller, distributor, trader or service
provider involved in the cartel. 157 It clearly showcases that the penalties imposed under the Act
in Cartel cases are addressed to legal persons separately and not to the corporate
group/enterprise collectively. 158 Consequently, leniency application shall be filled separately
by all the member companies of the cartel as the penalty upon which leniency is granted is
addressed to legal persons and not an enterprise in all the cases.159
¶ [112]. The same has been reiterated and followed by the CCI on several cases such as in the

147
Competition Act, 2002, § 2(h).
148
National Insurance Companies Ltd & Ors. v. Competition Commission of India, (2017) Comp LR 1 (CCI).
149
Exclusive Motors Pvt Limited v. Automobili Lamborghini S.P.A, Case No. 52 of 2012 (CCI).
150
Case T-408/10, Roca Sanitario v. Commission, ECLI:EU:T:2013:440.
151
Case C-41/90P, Höfner and Elser v. MacrotronHoffner, ECLI:EU:C:1991:161.
152
Case T-110/07, Siemens v. Commission, ECLI:EU:T:2011:68.
153
Case C-170/83, Hydrotherm v. Compact, 1984 E.C.R. I-02999.
154
Case C-73/95P, VIHO Europe v. Commission, EU:C:1996:405.
155
Case T-408/10, Roca Sanitario v. Commission, ECLI:EU:T:2013:440.
156
Suo Moto Case No 03 of 2014, In Re: Cartelisation in respect of tenders floated by Indian Railways for
supply of Brushless DC Fans and other electrical items, (decided on Jan. 18, 2017).
157
Competition Act, 2002, § 27(b).
158
ABIR JOY AND JAYANT KUMAR, COMPETITION LAW IN INDIA (Eastern Law House, 2nd ed. 2008).
159
RICHARD WISH AND DAVID BAILEY, COMPETITION LAW (Oxford eds., 9th ed. 2018).
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case of In Re: Cartelisation in respect of zinc carbon dry cell batteries market in India,160
where it was held that a separate leniency application shall be filled by each and every member
of the Cartel. Pertinently, in the instant case two separate leniency application were filled by
Panasonic.161 Firstly, on behalf of itself i.e., Panasonic Corporation, Japan and its wholly
owned Indian Subsidiary i.e., Panasonic Energy India Co Ltd. 162 Separate application were
made by Panasonic inspite of the fact that both of the companies were a SEE and part of a
single enterprise by being in a Parent-Subsidiary relationship.163
¶ [113]. Similarly, as per the collective reading of point 6, 8, 12, 15, 19 and 21 of EC’s
Leniency Notice of 2006, leniency application is to be made by a single, separate legal
personality.164 Furthermore, the Hon’ble CJEU in the case of General Química and
Others v. Commission,165 held that, “each cartel member should apply separately for leniency.
A corporate group consisting of several juristic person cannot be normally accepted as a
leniency applicant. Appositely, the members of corporate group indulged in the cartel should
apply separately as they are the actors in the market”.
¶ [114]. Therefore, it can be concluded that a separate leniency application should be filled on
behalf of each and every member of the cartel as the sanctions of penalty upon which leniency
is given are addressed to separate legal persons and not an enterprise in cases of cartel. Thus,
in the present case, two separate leniency application should have been filled on behalf of BAT
and Imperial to avail the benefit of leniency under lesser penalty regulation.

2. JOINT APPLICATION FOR LENIENCY IS NOT ALLOWED UNDER THE LESSER PENALTY
REGULATION

¶ [115]. The Hon’ble CCI in its Recent Case of In Re: Cartelisation by Shipping Lines in the
matter of provision of Maritime Motor Vehicle Transport Services,166 held that, “under
Lesser Penalty Regulations read with § 46 of the Act, there is no provision whereby two or
more parties can jointly file an application under § 46 of the Act. Pertinently, it was noted by
the commission that allowing joint application shall run counter to the spirit of the lesser

160
Suo Moto Case No 02 of 2016, In Re: Cartelisation in respect of zinc carbon dry cell batteries market in
India, (decided on Apr. 19, 2018) [hereinafter Dry Cell Batteries Case].
161
Id.
162
Saikrishna & Associates, Cartels in India, (Apr. 2, 2019)
https://www.lexology.com/library/detail.aspx?g=3a5a4a8a-ce0d-42c4-9b88-d1e317aa5841.
163
ABIR JOY AND JAYANT KUMAR, COMPETITION LAW IN INDIA (Eastern Law House, 2nd ed. 2008).
164
Case C-98/17P, Philips and Philips France v. Commission, EU:C:2018:774.
165
Case C-90/09P, General Química and Others v. Commission, EU:C:2011:21.
166
Shipping Cartel Case, at ¶ 5.
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penalty regulation”. Pertinently, the objective includes: to promote a race for leniency amongst
cartel members whereby the applicants are required to disclose significant evidence of the
existence of the cartel as compared to other members in order to receive the maximum
reward.167
¶ [116]. In the aforementioned case, CCI rejected a Joint Leniency Application filled by a
parent and its wholly owned subsidiary and asked them to file a separate application on behalf
of both of them.168 Moreover, after filling of separate leniency application, the parties had
contended that both of the companies are a single entity by being in a parent-subsidiary
relationship.169 Thereby, all the benefits conferred to the parent shall also be conferred to the
subsidiary regardless of the marker and contribution of the subsidiary. However, the following
contention was also rejected and both of them were conferred separate reduction in penalty as
per their marker and contribution. 170
¶ [117]. Furthermore, even if is assumed that Joint Leniency Application can be filled under
Lesser Penalty Regulation then also BAT’s leniency application is not a valid joint application
and cannot be extended to Imperial. The rationale for the same is that the CJEU in the case of
Laufen Austria v. Commission,171 held that “a joint leniency application should include name
of all the persons on behalf of whom the application is filled as leniency can only be granted
on explicit application. If there is no explicit mention of the beneficiaries then it is impossible
for the Commission to know whom it is addressed and who is oblige to cooperate”. However,
the leniency application of BAT has only been filled on behalf of itself and it any manner
whatsoever include the name of Imperial in it. 172
¶ [118]. Thus, the Leniency Application of BAT cannot be considered as the Leniency
Application on behalf of Imperial as all the members of the cartel have to file separately for
leniency and Joint Application for leniency is not allowed under the Lesser Penalty Regulation.

B. IN ARGUENDO, ASSUMING THAT BAT’S LENIENCY APPLICATION INCLUDES ALL THE

MEMBERS OF SEE, IMPERIAL HAS STILL FAILED TO FULFIL THE CONDITIONS FOR

GRANTING LENIENCY

167
COMPETITION COMMISSION OF INDIA, GUIDE ON LENIENCY PROGRAMME, 7 (2020).
168
Shipping Cartel Case, at ¶ 229.
169
Id.
170
Id, at ¶ 230.
171
Case C-637/13 P, Laufen Austria v. Commission, EU:C:2017:51.
172
Moot Proposition ¶ 10, pg. 4.
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¶ [119]. Pertinently, mere submission of leniency application does not guarantee the grant of
leniency under the lesser penalty regulation. 173 An applicant in order to avail benefit of leniency
has to satisfy all the applicable condition laid down under Regulation 3 of the Lesser Penalty
Regulation in all the cases. 174
¶ [120]. The Hon’ble GC and CJEU in the case of RWE and RWE Dea v. Commission,175 and
FLSmidth v. Commission,176 held that, “Submission of Leniency application by one member
of an enterprise on behalf of all the members does not absolve the other members from fulfilling
the conditions for granting leniency. Leniency shall only be granted to the members of joint
application on the basis of the cooperation and evidence provided by that member”.
¶ [121]. In arguendo, assuming but not conceding that BAT’s Leniency Application includes
all the members of SEE by being a valid joint-application or due to being a SEE. Therefore, in
the present case, Imperial also had to satisfy all the applicable conditions laid down under
Regulation 3 of the Lesser Penalty Regulation. However, it is humbly submitted that Imperial
has failed to fulfil the conditions for granting leniency. The premise of the present sub-issue is
two-fold: [1] Imperial has failed to make any vital disclosure which adds significant value for
establishing the contravention and; [2] Imperial has failed to cooperate with the CCV
throughout the investigation.

1. IMPERIAL HAS FAILED TO MAKE ANY VITAL DISCLOSURE WHICH ADDS SIGNIFICANT VALUE
FOR ESTABLISHING THE CONTRAVENTION.

¶ [122]. In arguendo, assuming but not conceding that BAT’s Leniency Application includes
all the members of SEE by being a valid joint-application or due to being a SEE. Therefore, in
the present case, Imperial also had to satisfy all the applicable conditions laid down under
Regulation 3 of the Lesser Penalty Regulation. However, it is humbly submitted that Imperial
has failed to fulfil the conditions for granting leniency. The premise of the present sub-issue is
two-fold: [1] Imperial has failed to make any vital disclosure which adds significant value for
establishing the contravention and; [2] Imperial has failed to cooperate with the CCV
throughout the investigation.
¶ [123]. Regulation 3(1)(b) read with Regulation 4(b) of the lesser penalty regulation provides

173
Case T-408/10, Roca Sanitario v. Commission, ECLI:EU:T:2013:440.
174
Lesser Penalty Regulation, Reg. 3.
175
Case T-543/08, RWE and RWE Dea v. Commission, EU:T:2014:627.
176
Case C-238/12 P, FLSmidth v. Commission, ECLI:EU:C:2014:284.
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that any subsequent leniency applicant shall make vital disclosure which add significant value
for establishing the contravention as well as their role in that cartel. 177 Similarly, the EC under
point 24 of the Leniency Notice of 2006 also mentions the requirement that a leniency applicant
shall provide evidence of the alleged infringement which represents significant added value
with respect to the evidence already in the EC’s possession.178
¶ [124]. The Hon’ble CCI in the case of In Re Cartelisation in respect of tenders floated by
Indian Railways for supply of Brushless DC Fans and other electrical items,179 state that,
“added value means to the extent up to which the evidence provided by the subsequent
applicant enhances the ability of the Commission to establish the existence of a cartel”. The
evidence provided should help substantiate the evidence already in the possession of the DG
and help complete the chain of events. 180
¶ [125]. In the present case, Imperial didn't provide any material information or evidence
relating to the establishment or existence of a cartel that had a greater value than evidence
subsequently established or was relied upon by the DG.181 On the other hand, it denied any
relations or involvement with such a cartel. 182 Thereby, violating its duty to add significant
value under Regulation 3(1)(b) read with Regulation 4(b).
¶ [126]. Therefore, in the present case, Imperial has failed to make any vital disclosure which
adds significant value for establishing the contravention.

2. IMPERIAL HAS FAILED TO COOPERATE WITH THE CCV THROUGHOUT THE INVESTIGATION.

¶ [127]. Regulation 3(1)(d) of the lesser penalty regulation provides that the leniency applicant
shall co-operate genuinely, fully, continuously and expeditiously throughout the investigation
and other proceedings before the CCV.183 Similarly, the EC also mentions the requirement of
genuine, full, continuous and expeditious cooperation under point 12(1) of the Leniency Notice
2006.184 As per the rule only an undertaking which has cooperated with the CCV on the basis
of the Leniency Notice can be granted, under that notice, a reduction of the fine which would

177
Lesser Penalty Regulation, Reg. 3(1)(b) r/w Reg. 4(b).
178
Leniency Notice 2006, Point 24.
179
Suo Moto Case No 03 of 2014, In Re: Cartelisation in respect of tenders floated by Indian Railways for
supply of Brushless DC Fans and other electrical items, (decided on Jan. 18, 2017).
180
Dry Cell Batteries Case, at ¶10.3.
181
Moot Proposition ¶ 14, pg. 6.
182
Moot Proposition ¶ 15, pg. 6.
183
Lesser Penalty Regulation, Reg. 3(1)(d).
184
Leniency Notice 2006, Point 12(1).
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have been imposed without that cooperation. 185

¶ [128]. The Hon’ble CJEU in the case of Erste Group Bank and Others v. Commission,186
held that, “it is necessary for an applicant to cooperate fully i.e., in complete, absolute and
unreserved sense. Furthermore, such cooperation shall be continuous, genuine and
expeditious, meaning thereby that such cooperation must last throughout the administrative
procedure”. In the case of Deltafina v. Commission,187 the Hon’ble General Court of the
European Union upheld the cancellation of conditional leniency granted to a company on the
ground that it did not provide any evidence after the submission of the application.
¶ [129]. Similarly, in the present case, Imperial has not cooperated with the CCV in any manner
from the inception to end of the investigation. First, of all Imperial did not admit any stage
about its involvement in the cartel but kept on categorically denying the same. 188 Furthermore,
it did not produce any evidence to establish the contravention and its role in the cartel. 189
Therefore, Imperial has clearly violated its duty to cooperate under Regulation 3(1)(d).
¶ [130]. Thus, even if it is assumed that BAT’s Leniency Application includes all the members
of SEE. However, the leniency shall not be extended to Imperial as it has failed to comply with
the conditions for granting leniency by failing to add significant value and cooperate
throughout the investigation.
¶ [131]. Ergo, it is humbly submitted that if BAT and Imperial are a SEE for the purpose of
the present cartel then a similar percentage of reduction in penalty shall not be granted to
Imperial if BAT’s leniency application is successful as the Leniency Application of BAT is not
equal to the Leniency Application of Imperial and Imperial has failed to comply with the
conditions for granting leniency.

185
Case C-238/12 P, FLSmidth v. Commission, ECLI:EU:C:2014:284.
186
Case C 137/07, P Erste Group Bank and Others v. Commission, 2009 E.C.R. I-8681.
187
Case T- 12/06, Deltafina v. Commission, 2011 E.C.R. II-0000.
188
Moot Proposition ¶ 14, pg. 6.
189
Moot Proposition ¶ 15, pg. 6.
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PRAYER

Wherefore in the light of facts presented, issues raised, arguments advanced and authorities
cited, the Counsel on behalf of Prosecution humbly prays before this Hon’ble CCV that it may
be pleased to adjudge and declare that:

1. A leniency applicant subsequently cannot challenge the finding of a violation under §

3(3)(a) of the Competition Act. Thereby, OP-2 should not be allowed to subsequently
challenge the finding of violation under § 3(3)(a) of the Act.

2. The exchange of price sensitive information by the OP’s in the context of the present case
amounts to a violation of § 3(3)(a) of the Competition Act.

3. Imperial and BAT should be considered as a part of a single economic entity for the
purposes of the present cartel.

4. Even if Imperial and BAT are a single economic entity for the purpose of present cartel
then also the CCV shall not extend a similar percentage of reduction in penalty to Imperial
pursuant to BAT’s leniency application, if BAT’s leniency application is successful.

and/or

Pass any other order, direction or relief that it may deem fit in the interest of justice, equity,
fairness and good conscience.

For this act of kindness of Hon’ble members of the Commission, the Prosecution shall
duty bound forever pray.

Place: S/d-

Date: COUNSELS for PROSECUTION

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