By Augustine Peter & Neha Singh

Digital markets in India are growing exponentially and this brings with it complexities in enforcement in all segments of competition law. New forms of collusion using artificial intelligence have emerged. Hub and spoke cartels pose distinct problems. While dealing with digital markets, market definition needs to be nuanced. The Indian authority has had occasion to handle a few cases related to horizontal as well as vertical agreements in the digital space. As regards online resale price maintenance the rules evolved in offline cases are expected to apply, mutatis mutandis. Not insignificant market power in the relevant market is a necessary pre-condition for looking at vertical restraints. The role of data and network effects in abusive conduct was noticed by the Commission in Google I. However, the Commission had no occasion to examine if data is an essential facility. While looking at predatory pricing in the digital market the Commission has been cautious while defining market and dominance. The way price is defined in law, the existing provisions are sufficient to address anti-competitive agreements, including cartels, as also abuse of dominant position, though the Commission has been seen to be cautious not to err on the side of activism. However, the current asset/ turnover thresholds for mandatory merger notification has been found to be inadequate for digital markets, and the recent report of the Competition Law Review Committee has recommended “transaction value” based thresholds.