2025 (4) TMI 512 - CCI - Law of Competition

Abuse of dominant position - creation of monopolistic environment thereby violating Section 4(2)(a)(i) of Competition Act - limiting the provision of services in the Delhi airport market by ousting other prospective contractors in contravention of Section 4(2)(b)(i) of the Act - selectively awarding contracts to its own formed companies denying market access in violation of Section 4(2)(c) of the Act - leveraging its dominant position to engage in exclusionary practices restricting services in the downstream market in violation of Section 4(2)(e) of the Act. Creation of monopolistic environment thereby violating Section 4(2)(a)(i) of Competition Act - HELD THAT - The Commission in relation to the allegation under Section 4(2)(a)(i) is of the view that the imposition of 13% fee on tenders is a continuation of the charges previously levied by AAI a statutory body and notes that the same is being levied uniformly on all the service providers with no further increase. In view of generic and wide nature of allegations related to creation of monopolistic environment which could lead to imposition of exorbitant charges on customers in future the Commission is of the view that in absence of any evidence it may not be prudent to deal with the allegation/apprehension at this juncture. Selectively awarding contracts/tender by OPs to its own entities leading to limiting the provision of services in the airport market of Delhi and denial of market access - HELD THAT - The Commission is of the view that as per the OMDA Agreement OP-3 has the right to sub-contract third party entities for providing services such as parking and lounge services and also have the right to acquire ownership of such entities. It is also noted that OP-3 in its submissions gave details of the bidding process adopted for both parking and lounge services through which DAPSL and Encalm were awarded their respective contracts. OP-3 has stated that in each of the processes involving award of contract for parking facility and lounge facility multiple third-parties participated in the bid process and none of the bidders were related parties to OP-3 or OP-4. Allegation pertaining to parking services - HELD THAT - The Commission noted the submission of OP-3 wherein it is mentioned that DIAL issued the RFP dated 15.10.2009 and carried out a competitive bidding process in which ten domestic and international entities participated. Based on a technical and financial evaluation of the bids submitted a consortium of Greenwich and Tenaga was identified as the highest bidder for the purpose of awarding the concession for parking services - the Commission observes that the entity for parking services was selected through a competitive bidding process in compliance with the OMDA agreement. Thus the allegation raised in the Information under Section 4(2)(b) 4(2)(c) and 4(2)(e) of the Act in relation to the award of parking services to entities allegedly under significant control of OP-3 is unsubstantiated. Allegation pertaining to lounge services - HELD THAT - OP-3 has stated that Encalm is an independent third party and has no relation with DIAL or GIL except being the licensee to provide certain services at IGI Airport. It is also stated that none of the Encalm s shareholders hold any directorship in DIAL/GIL or vice versa. The contract for operating and managing lounge facility at IGI Airport was awarded to Encalm on 17.11.2021 by way of competitive bidding process. Thus similar allegations under the above-mentioned provisions of the Act raised in relation to Encalm s selection process are unsubstantiated. Conclusion - The Commission finds that no prima facie case of contravention of the provisions of Section 4 of the Act is made out against the Opposite Party. Accordingly the information is ordered to be closed forthwith in terms of the provisions contained in Section 26(2) of the Act. Consequently no case for grant for relief(s) as sought under Section 33 of the Act arises and the same is also rejected. The Secretary is directed to communicate to the Informant accordingly.

ISSUES PRESENTED and CONSIDERED

The core legal issues considered in this judgment involve allegations of abuse of dominant position by the Opposite Parties (OPs) under Section 4 of the Competition Act, 2002. The specific issues are:

1. Whether OP-4, through OP-3, is creating a monopolistic environment by imposing exorbitant charges on customers, thereby violating Section 4(2)(a)(i) of the Act.

2. Whether OP-4 is limiting the provision of services in the Delhi airport market by ousting other prospective contractors, in contravention of Section 4(2)(b)(i) of the Act.

3. Whether OP-4 is selectively awarding contracts to its own formed companies, denying market access, in violation of Section 4(2)(c) of the Act.

4. Whether OP-4 is leveraging its dominant position to engage in exclusionary practices, restricting services in the downstream market, in violation of Section 4(2)(e) of the Act.

ISSUE-WISE DETAILED ANALYSIS

1. Allegation of Monopolistic Environment and Exorbitant Charges (Section 4(2)(a)(i))

Relevant Legal Framework and Precedents: Section 4(2)(a)(i) of the Act prohibits the imposition of unfair or discriminatory conditions or prices in the purchase or sale of goods or services.

Court's Interpretation and Reasoning: The Commission found no evidence to support the allegation of imposition of unfair conditions or exorbitant charges by OP-3. It noted that charges for aeronautical services are fixed by the statutory regulator, and non-aeronautical service charges are determined based on competitive metrics.

Key Evidence and Findings: The Commission observed that the 13% fee on tenders was a continuation of charges previously levied by AAI, a statutory body, and was uniformly applied to all service providers without any increase.

Application of Law to Facts: The Commission concluded that the allegations of creating a monopolistic environment lacked evidence and were speculative.

Treatment of Competing Arguments: The Commission considered OP-3's submission that similar charges are levied at other major airports, rendering the issue baseless.

Conclusions: No prima facie case was made out under Section 4(2)(a)(i) as the allegations were unsupported by evidence.

2. Allegations of Limiting Service Provision and Denial of Market Access (Sections 4(2)(b)(i), 4(2)(c), 4(2)(e))

Relevant Legal Framework and Precedents: These sections address practices that limit or restrict market access, including exclusionary practices and denial of market access.

Court's Interpretation and Reasoning: The Commission examined the OMDA Agreement, which grants OP-3 the exclusive right to perform services and contract third parties. It found that OP-3 followed competitive bidding processes for awarding contracts.

Key Evidence and Findings: OP-3 provided details of the bidding process for parking and lounge services, showing participation from multiple third parties and compliance with OMDA requirements.

Application of Law to Facts: The Commission noted that OP-3's actions were in line with OMDA provisions, allowing it to subcontract and acquire ownership of entities providing services.

Treatment of Competing Arguments: The Commission dismissed allegations of selective awarding of contracts, as the processes were competitive and transparent.

Conclusions: Allegations under Sections 4(2)(b)(i), 4(2)(c), and 4(2)(e) were unsubstantiated, and no prima facie case was established.

SIGNIFICANT HOLDINGS

Preserve Verbatim Quotes of Crucial Legal Reasoning: "The Commission is of the view that the imposition of 13% fee on tenders is a continuation of the charges previously levied by AAI, a statutory body, and notes that the same is being levied uniformly on all the service providers, with no further increase."

Core Principles Established: The judgment reinforces the principle that allegations of abuse of dominance must be substantiated with evidence. Competitive bidding processes and compliance with contractual agreements are crucial in determining the legitimacy of market practices.

Final Determinations on Each Issue: The Commission concluded that no contravention of Section 4 of the Act was established against the Opposite Parties. Consequently, the information was ordered to be closed under Section 26(2) of the Act, and no interim relief was granted under Section 33.

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