The ten loosely defined anti-competitive practices attack product design and consumer experience that are meant to fiercely compete in a dynamic market – with price and non-price benefits. Applying a ‘rule of reason’ test, they can arguably be ‘competition on merits’. When pro-competitive business justifications are supported with ample evidence in some of the markets examined by the CCI (where multiple platforms or competitors are growing in similar markets like e-commerce, OTT etc), why are leading platforms’ market share conflated with market power or seen as anti-competitive without a cogent standard of proof? If there is no evidence of harm to the competitive process of demand and supply economics, who is the law looking to protect?
Do dominant businesses not have a right to promote their own products and services? What is the test of harm to distinguish the anti-competitive (preferencing to drive out rivals) from the benign (promoting based on consumer preferences). Coding a law that applies to all (good and bad business practices) would result in a presumptuous and flawed regulatory approach. To assess appreciable adverse effects on competition under Section 19(3) of the Competition Act, the rules must distinguish between factors like tech innovation (that are pro-competitive) from factors that cause artificial barriers (amounting to exclusionary behavior that are anti-competitive).
For instance, can a finding against Amazon not sharing data with rival sellers on the platform, to drive competitors out, be a reason to restrict all platforms from using algorithmic visibility and promotional campaigns? Jo dikhta hai woh bikta hai, say marketing gurus. Even in the case of Amazon, there is no conclusive finding since the European Commission resolved it by accepting commitments that expire in a few years. With lopsided rules, such positively fast track provisions will then create a cliffhanger, with no jurisprudence on exclusionary conduct. It is also possible that at a later stage, competition authorities may require commitments that do not expire. Can regulators second guess the business strategies of entities and provide mandatory obligations to change their business structures – pandering to the requests of the rivals (protecting competitors not market competition)?
Source: Barandbench
