By Sagardeep Rathi, Anisha Chand, Akash Karmarkar

In the 2017 Order, the Supreme Court dealt with an issue of alleged cartelisation and anti-competitive conduct under section 3 of the Competition Act, 2002 (Section 3). In this regard, the Supreme Court noted that section 19(3) of the Competition Act, 2002
(Competition Act) sets out criteria for ascertaining whether an agreement causes appreciable adverse effect on competition (AAEC) in terms of Section 3 (Anticompetitive
agreements). The Supreme Court observed that since section 19(3) specifically uses the term ‘market’ (which the Supreme Court construed to mean ‘relevant market’), it was necessary to first define the relevant market in which competition was “effected”, prior to making an assessment of AAEC under Section 3.

This observation led to certain uncertainties among parties as well as the CCI, since the Supreme Court’s views were divergent from the decisional practice of the CCI and the explicit language of the legislation (specifically relating to the presumption of AAEC under sub-section 3 of Section 3). Consequently, the CCI preferred an application for clarification of the 2017 Order before the same bench resulting in the Clarification Order.