Competition Commission of India v. Coordination Committee of Artists and Technicians of W.B. Film and Television, (2017) 5 SCC 17

The Supreme Court's principal decision on collective boycott and on the conduct of associations. A committee of associations of artists and technicians directed television channels not to telecast a dubbed serial and procured compliance by threatening non-cooperation. The Commission found a contravention of Section 3(3)(b); the appellate tribunal set that aside on the footing that the committee was a trade union protecting its members; the Supreme Court restored the finding, holding that what was done was economic in character and that the effect on the market was what mattered.

1. The Facts

A producer had dubbed a television serial into Bengali and arranged for it to be telecast on channels in West Bengal. The coordination committee, comprising associations of artists and technicians working in the Bengali film and television industry, objected that the telecast of dubbed content would reduce work for local artists and technicians. It wrote to the channels, demanded that the telecast be stopped, and indicated that its members would not cooperate with channels that continued. The telecast was discontinued.

2. What the Commission Found

The Commission held that the committee was an association of enterprises acting in the economic sphere, that its decision was an agreement within Section 3(3)(b) limiting the supply of goods and services in the market, and that the presumption of appreciable adverse effect applied. The relevant market was identified as the market for the broadcast of television serials in Bengali in West Bengal, language and region being the determinants.

3. The Tribunal's View and Its Reversal

The Competition Appellate Tribunal set the order aside. Its reasoning was that the committee was in the nature of a trade union protecting the livelihood of its members, that its members were artists and technicians rather than enterprises engaged in the same trade as the producer or the channels, and that the conduct was therefore outside Section 3(3), which requires an agreement between enterprises engaged in identical or similar trade.

The Supreme Court restored the Commission's order. Its reasoning proceeded in four steps.

1. The character of the actor does not determine the character of the act. A body may be a trade union for some purposes and an association of enterprises for others. What matters is whether what it did was economic in nature, and directing channels not to telecast content, with the object of protecting the commercial interests of its members, plainly was.
2. Members were engaged in economic activity. Artists and technicians supplying services for remuneration are engaged in economic activity, and their associations accordingly fall within the expression association of enterprises or persons in Section 3(3).
3. The decision was an agreement. Section 3(3) applies expressly to a practice carried on or a decision taken by an association, so a resolution or direction of the association is treated as an agreement among its members.
4. The effect was to limit supply. The refusal to permit the telecast restricted the supply of content in the relevant market, which is Section 3(3)(b), and the presumption followed.

4. The Market Definition Point

The Court accepted a narrow market: the broadcast of television serials in Bengali in West Bengal. Language and region were treated as decisive, on the footing that a viewer of programming in one language does not regard programming in another as a substitute, and that the conditions of competition in that region were distinguishable from neighbouring areas.

5. What the Case Establishes

• Collective boycott is a horizontal contravention under Section 3(3)(b), being an agreement limiting supply.
• Associations are within the Act, and a decision of an association is treated as an agreement among its members.
• Labour or professional character is not a shield where the conduct is economic. The protection of members' livelihoods is not a defence to restricting supply in a market.
• Language and region can define a market, which is the clearest Indian authority on those determinants under Section 19(6) and 19(7).
• Relevant market definition is not a precondition under Section 3, following the clarification of 2018.

6. Related Topics and Provisions