Disposed
Meru Travel Solutions Private Limited (Mtspl) v. Uber India Systems Pvt. Ltd. & Others
CCI96/2015
What the court decided
AI extract
Outcome
Disposed
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
COMPETITION COMMISSION OF INDIA Case No. 96 of 2015
In Re:
Meru Travel Solutions Pvt. Ltd. (Meru)
128, IJMIMA-Raheja Metroplex, Behind Goregoan Sports Club, Off. Link Road, Malad (W), Mumbai-400064
Informant
And
Uber India Systems Pvt. Ltd.
Regus Business Center Pvt. Ltd., Level 13, Platinum Techno Park, Plot No. 17/18, Sector 30 A, Vashi, Navi Mumbai, Maharashtra-400705
Opposite Party No. 1
Uber B.V.
Meester Treublann 7, 1097 DP Amsterdam, The Netherlands
Opposite Party No. 2
Uber International Holding B.V. Vijzelstraat 68, Amsterdam 1017, HL, The Netherlands
Opposite Party No. 3
Uber International B.V. Vijzelstraat 68, Amsterdam 1017, HL, The Netherlands
Opposite Party No. 4
Uber Technologies Inc. 182, Howard Street 8, San Francisco CA 94105
Opposite Party No. 5
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CORAM
Mr. Ashok Kumar Gupta Chairperson
Ms. Sangeeta Verma Member
Mr. Bhagwant Singh Bishnoi Member Appearances
For the Informant Mr. Sonal Jain, Legal Counsel Mr. Udyan Jain, Advocate Mr. Abir Roy, Advocate Mr. Vivek Pandey, Advocate Mr. Rahul Kalpani, Authorized Representative For Uber India System Pvt. Mr. Amit Sibal, Senior Advocate Ltd. OP-1) Mr. Saksham Dhingra, Advocate Ms. Ajita Tondon, Counsel, Legal Mr. Rohan Mahendra Arora, Authorized Representative For Uber B.V. (OP-2) Mr. Amit Sibal, Senior Advocate Mr. Saksham Dhingra, Advocate Mr. Aman Singh Sethi, Authorized Representative Ms. Anjali Kumar, Authorized Representative Mr. Devarsh Harsh Kotak, Authorized Representative
Order under Section 26(6) of the Competition Act, 2002
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Group ’/‘ OP Group ’ / ‘ Uber ’), alleging contravention of the provisions of Section 3 and 4 of the Act. It has been alleged that Uber, which is a dominant enterprise in the market for radio taxi services in Delhi-NCR (National Capital Region), has abused its position by resorting to predatory pricing with an intention to drive out its equally efficient competitors like Meru.
Brief facts of the case
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TaxiForSure, Meru, Easy Cabs, Quick Cabs, Mega and others. The Informant also alleged that in terms of size and resources, economic power vis-à-vis its competitors in relevant market, growing dependence of its customers on it, vertical integration of its resources, lack of countervailing buying power etc. , Uber held a dominant position in the relevant market.
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Section 3 of the Act, the Commission did not find it necessary to deal with the said allegation as OP-1 categorically denied imposition of any such conditions on its driver partners and the Informant failed to adduce any evidence.
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report to the Commission.
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Observations and findings of the DG
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of transport (including black and yellow taxis, auto rickshaws, private cabs etc. ). The said market is separate and distinct from both supply and demand side perspective. Further, in the past few years, the radio taxi companies’ leveraged technology to offer bookings through application-based platforms (‘app’) available on mobile and over the internet. Such mobile applications allow passengers (through the app) to actually see the availability of taxis in or around their location on real time basis (along with estimated time of arrival and the estimated fare for the trip) at the time of booking of the taxi. The customer can track the taxi at all times of his journey including a linkage to the final invoice. The distinguishing features of radio taxi include ease of booking, reliability of service due to GPS tracking, transparent fare and accurate meter, option to select the type of taxi and quality of the vehicle, the quality of the drivers maintained by the company, emergency assistance button, ease of payment and feedback facility.
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aggregator model and hybrid model, besides noting their distinctive features and players operating under those models. The DG observed that while the radio taxis are owned by the radio taxi service providers under the assetowned model; in the aggregator’s model, the operator does not own the radio cabs but only acts as an aggregator (platform) that connects the drivers with the prospective consumers. Uber operates under the aggregators’ model and one of its competitors, working on the same business model, in the relevant market, is Ola. The DG also observed that there are certain players who operate as a mix of both these models like ‘Mega’ and ‘Meru’.
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operator is not merely a platform, the two relevant product markets – ‘market for transportation services for riders’ and ‘market for facilitation services to drivers for accessing riders’, as provided in the ‘CUTS report’1 submitted by Uber, were also not found to be appropriate or acceptable by the DG in the present case.
1 CUTS International, An Evidence-Based Analysis of Relevant Market: The Case of Ridesharing in Delhi-National Capital Region (India) (2020), available at https://cuts-ccier.org/pdf/evidence-based-analysis-the-case-of-ride- sharing-in-delhi-national-capital-region.pdf.
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than their absolute trip size which showed that these players were not able to catch-up with the growth in the market.
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period, the fleet size and trip size of these two players, i.e. Uber and Ola, witnessed exponential growth. During the months of September 2016 to April 2018, Ola and Uber displaced each other as market leader on repeated occasions. However, Uber has been able to maintain its lead position and increase its gap in subsequent months. The DG opined that the highly competitive market with fluctuating market shares of Uber and Ola, cannot be construed to be a sign of market power or dominance of Uber.
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in the relevant market of Delhi NCR. Therefore, Uber cannot be said to enjoy any commercial advantages over its competitors like Ola. Further, Ola’s operation, which was initially confined to India has gradually expanded outside India as it began its international foray in February 2018 by launching in Australia, followed by UK in August and New Zealand in November of that year.
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position of strength so as to behave, to an appreciable extent, independently of its competitors and customers, in the relevant market. Thus, Uber is not found to be dominant in the relevant market in the present case.
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of Sections 3(1), 3(2) and 3(4) of the Act as those contracts restrain the driver partners from getting attached on the network of other competing radio taxi operators. Such agreements/contracts were alleged to be causing AAEC in the market since other competitors could not match Uber’s anticompetitive strategy of incurring losses and thus all such competitors except Ola were slowly bleeding to death. The cumulative effect of agreement entered between Uber and its drivers was stated to have marginalized all other competitors of Uber, barring Ola. And these other competitors were on the verge of elimination.
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mechanism to keep the drivers onto the Uber network which restricted competition in the market. However, Uber stated that the Rating clause of the Uber’s agreement with Driver-Partners reflected that the purpose of average rating system was to ensure that users (riders) have access to high quality service, through Uber’s app. The Informant further alleged that the incentive scheme of Uber is designed in such a manner that driver would get incentives on an accelerated basis, which means that the driver would receive ratings based on the number of trips accepted in a day and thus they remain logged in network of Uber. Uber vide its reply dated 30.10.2019 countered Informant’s allegation and submitted that the incentives are not based on any long-term agreement with the driver-partners but are provided on an ad-hoc basis, assessing the demand and supply in the market at the time. It has been stated that these incentives are not loyalty inducing, do not create any foreclosure effect and have been decreasing over time as Uber’s network reaches an efficient scale. Uber in its submission dated 20.02.2020 further stated that the incentives were aimed at growing the market to achieve a certain minimum scale, which will allow it to achieve a balance between supply and demand on its platform at all times.
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also been able to get more and more vehicles attached to its network, goes to demonstrate that there has been no supply constraint or entry or expansion barrier or foreclosure of competition in the relevant the market.
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submissions on 17.03.2021, before OP-1 and OP-2 started with their submissions. Accordingly, on 17.03.2021, the matter was further heard and the oral submissions of the parties were concluded. The parties were directed to file written synopsis of their oral arguments, within two weeks, i.e. latest by 31.03.2021, which they filed. The submissions of the Informant as well as Uber, including their oral submissions, are briefly summarised below.
Replies/Submissions of the Parties
Meru/Informant
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Recycling Austria, AG v. European Commission and inferred that it is necessary to assess the cumulative economic impact of the agreement of Uber and its drivers, in the context of all the incentives and discounts offered. Meru also argued that the defence of Uber that there is no exclusivity clause in the agreement is not tenable as there is no requirement of specific exclusivity clause in case exclusivity is ensured by Uber through the implementation and effect of various clauses in the agreement and most importantly through the effect of the incentives offered to the drivers.
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loyalty, not based on efficiency considerations, can be anti-competitive. Meru while supporting its contentions with Guidelines on Vertical Restraints from EU , explained that the contract needs to be analysed based on the restriction it contained, their duration and the way in which the agreement is implemented. The contract needs to be analysed for likely impact in future in the relevant market.
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partners on a per hour basis. According to ‘Trip based incentives Scheme’ which is applicable from 2014, Uber offered incentives to drivers upon successful completion of a particular number of trips per day/week. ‘Minimum Business Guarantee Scheme’ of Uber between 2015 and 2016 provided guaranteed gross earnings to drivers upon completion of a particular number of trips. Further, Uber is operating ‘Guaranteed Surge Level Scheme’ from 2016 onwards under which Uber is paying guaranteed per trip incentive to drivers which is up to a portion of the trip fare based on particular location.
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on this, Meru deduced that the only option left with the drivers to recover their costs was to increase the number of trips on the platform to sustain themselves in the market. Further, Meru argued that the expenses to maintain a car has increased. Meru added that DG has ignored to interview the drivers in relation to the contract and also to analyse the argument of multi-homing as there is continuous increase in number of trips despite a reduction in incentives, which clearly shows without a shadow of doubt that drivers are locked-into the platform. Meru added that the DG has accepted the bald assertions of Uber that 50% of their drivers’ multi home since they download other apps as well, without any verification without even undertaking any interview with the drivers/driver survey.
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not accept the leads sent by Uber, then after a particular number of nonacceptances, such driver would not be sent any more leads. The threat of deactivation by Uber of a driver based on the said rating mechanism keeps the driver under the control of Uber and also tied to its platform. This in effect causes appreciable adverse effect on competition in the market and hence the same is anti-competitive in nature. This again compels each and every driver to use only one application at a time and log out from other applications, which in turn is not fluid multi-homing as sought to be understood by the DG. The argument given by Uber that the rating system is a mechanism to control quality is nothing as for a good rating, driver must keep accepting leads sent by Uber so that Uber rates a driver and also customers rating is high. Meru added that the working of this driver ratings would show that on account of such rating system (i) there is exclusivity in effect; (ii) it leads to entry barriers and foreclosure effect. Meru also examined the Ola Agreement and highlighted that Ola also controls the way drivers operate and contented that the manner of operation is exclusionary.
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contracts and strategies that are harming its rivals and such strategies are not linked to innovation or efficiencies. Meru also mentioned that Uber has global presence in over 300 cities across the world. It has only withdrawn from few markets on instructions of its biggest investor Softbank, which incidentally is also the highest stake holder in Ola. Uber Inc. and Uber B.V. have a capital arsenal to endlessly indulge in below cost pricing. It was submitted by Meru that the Commission may seek documents, details and an affidavit from Uber to see the control which is being exercised by Softbank in Uber which is also one of the largest stakeholders in Ola.
b. Foreclosure of competitors and creation of entry barriers: Meru submitted that Uber is doling out incentives based on their funding and the incentive scheme is devised in such a manner to ensure that the drivers complete maximum number of trips on their platform. Thus, the operation of the said agreement between Uber and its drivers respectively is foreclosing the other operators from the market. Meru also highlighted that, as per DG, the market has almost matured and established with Uber and Ola cornering the market with their anti-competitive conduct and that there has not been any effective entry in the market since 2013, existing players like Mega amongst several others and new players like Quick Cabs, Yo Cabs have exited the market. Meru also referred to the EU guidance on vertical restraints where it has been noted that in a mature market the technology is well known and widespread with no major brand innovation and in such a market negative effects are more likely than in more dynamic markets to indicate the theory of harm. Meru added that the incentive scheme is devised by Uber with the sole intention to exercise market power to the detriment of other players and increase their market share and in the process, foreclose the competition and create entry barriers. Meru also submitted that for
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existing player or potential entrant, it will be difficult to break this network as it must spend much more than Uber to create his own network and such expenditure will be sunk costs and thus, not an attractive proposition. Meru also stated that as a direct consequence of its anticompetitive designs, potential investors become blindsided about their investments as they are not able to identify if incumbents are losing market share/drivers and customers due to their inefficiencies or solely because of the artificially skewed pricing practices, and even as the market has matured, investors realize the mammoth capital required to make even a slight dent in the market. Meru added that the fact that the existing players were driven out of the competition and no new player has entered the market is itself a proof of AAEC due to conduct of Uber. The mere fact that one more entity (Ola) was engaged in below cost pricing, cannot be used as a defence by Uber to argue that market was competitive.
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categorically laid out the roadmap for the case before the Commission that if the investigation finds below cost pricing, the outcome would be that Uber would fall under the explanation 4(2)(a)(ii) and would be found to be dominant; thereafter once such dominance is established, the case of abuse would also be established. Hence the conduct of Uber is clearly in violation of Section 4(2)(a) of the Act.
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the entire focus of the DG has been on the competitor Ola, instead of making an analysis of the various competitive forces.
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few essential requirements like (i) consolidated power to negotiate; (ii) power to substantially affect the service provider by shifting en' bloc (all together at the same time) to a competing network and that both the aforesaid critical factors are missing in the present case. Finally, Meru also explained about the massive capital requirement to enter in the market and Uber’s ability to successfully choke entry into the market with the argument that DG has ignored that venture funding would be difficult for any player other than Ola and Uber including for new entrants since investors must invest more and be ready to suffer losses. Meru also highlighted that existing investors in Ola and Uber have non-compete obligations which would preclude the existing investors from investing in other radio taxi operators.
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(Jan 14 - Dec 14, Market Share of Competitors in Delhi NCR) to an oligopolistic market (Jan 15-Aug 15, Market Share of Competitors in Delhi NCR), which is now headed towards a duopoly. Meru submitted that they do not propose to label Ola and Uber to have joint/collective dominance but it implores the Commission to interpret the law with some dynamism and innovation requiring it to remedy a long-standing situation which is distorting the market for all other players. Meru placed reliance on the decision of Hon’ble Supreme Court in the context of purposive interpretation as held in the case of State of T.N. v. Kodaikanal Motor Union (P) Ltd., (1986) 35CC 91: 1986 SCC (Tax) 461 and further deduced that the Commission must intervene and pass orders under Section 27 (a), (o) and (e) against Uber.
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the Act, the former being applicable in cases where one of the parties to the agreement is dominant, and the latter when at least one of the parties has significant market power so as to result in such agreement which has a potential to cause AAEC. Meru added that the interim relief provided to Treebo and FabHotels was on account of AAEC and in this case too due to incentives, there is AAEC in the market and the Commission cannot remain oblivious to the same.
Uber India/Uber BV
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better funded, well resourced, fierce competitor which imposes a significant competitive constraint on Uber.
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can only request that its drivers accept trips while the app is logged-on, which is not always the case and Uber has no ability to require DriverPartners to stay logged in for extended periods of time.
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claimed confidentiality on similar information that it provided to the DG. The same has been duly granted confidentiality by the DG.
Observations and Findings of the Commission
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in terms of expected waiting and journey time, reliability in terms of GPS/GPRS tracking, ease of payment, quality vehicles, professional and well-trained drivers, feedback facility etc. makes them different from other modes of transport. Thus, the services of the radio taxi used for point-topoint travel in the city cannot be substituted with any other mode of local transport. Uber’s claim of availability of auto-rickshaws on its mobile app/platform similar to that of Radio Taxies cannot be a plausible reason to treat them as substitutable to autos due to peculiar features of taxis discussed above. The auto rickshaws attached to Uber’s platform cannot be compared with radio taxies due to certain peculiar features of taxis viz. - comfort and smooth drive, Air Conditioned, boot space, luggage space, safety, status of the passengers etc. Thus, the special features of radio taxis distinguish them from auto-rickshaws and other modes of transport.
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market in terms of transportation since its inhabitants are already exposed to the convenience of travel by the Delhi Metro and its buses. Further, the DG also took note of the Meru’s submission that the Hon’ble Supreme Court in its Order dated 05.01.2016 passed in the case of ‘M.C. Mehta vs. Union of India & Ors. [Writ Petitions(s) (Civil) No(s). 13029 of 1985)]’ clarified its previous Order dated 16.12.20151 and directed that its order regarding CNG taxis would be applicable on all taxis operating in the NCR region and that there was a typographical error in its previous Order dated 16.12.2015, which was relied upon by the Commission while restricting the relevant geographic market to Delhi earlier. Further, it is noted that the COMPAT’s Order dated 07.12.2016 was upheld by the Hon’ble Supreme Court in its Order dated 03.09.2019.
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in terms of their inherent characteristics, such as nature of competition, technology and innovation dimensions, calls for a case-by-case assessment of market share and its implications for dominance with reference to the totality of the market dynamics and competitive strategies of firms. The Commission also recognized the limitation of market shares as an indicator of market power in case of new market economy cases. Rather the Commission relied on factors such as strength of network effect, entry barriers, and assessment of strategies adopted by the players to analyse dominance. Based on these factors, the Commission was of the view that Ola did not hold the position of dominance in the relevant market for ‘ radio taxi services in Bengaluru ’ as it was not able to act independent of the competitive forces in the market.
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market. While Meru has alleged that this finding is contradictory to the earlier order, the Commission finds no such infirmity in the said finding of the DG. Firstly , the relevant geographic market in the present case is DelhiNCR while that in the earlier case was Bengaluru; and secondly , and more importantly, competitive constraints, generally, are not unidirectional in nature. Though there can be markets in which practically a situation may arise where the competitive constraints faced by players inter-se are not reciprocal and are indeed asymmetric. However, no such asymmetry or a superior position of any of the Radio taxi Service provider exists in the relevant market.
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as also that of the consumers. Given the highly competitive market with fluctuating market shares of Uber and Ola, the Commission does not find Uber to be dominant in the relevant market.
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generate efficiencies through higher utilization rate and lesser idle time for cabs/taxies.
2 Case No. 06 & 74 of 2015.
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120. The emergence of platform-based model, introduced by OP in the relevant market, challenged the well-established asset-owned model in this industry. The platform-based model allowed real time tracking of prospective riders and drivers on an App to facilitate quick booking and availability of taxis at a click/touch of a button/icon. The drivers were no more constrained to run the taxis idle, after dropping a rider and the riders were also not obliged to pay for the taxi’s return fare, which was a norm, at least in the unorganized sector.
121. However, popularizing taxi, as a preferred mode of transport, was not free from challenges, especially considering the common perception by consumer of it being a luxury good in most Indian cities. The platform based model in the taxi industry, like any other two-sided
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market, was dependent upon the growth of taxi network for benefits to permeate to riders and drivers. However, riding in taxis operated under asset-owned model was not only expensive in terms of the price, but, as discussed earlier, also entailed transaction and search costs. Thus, to attract prospective consumers/rider to experience the taxi services on this newly introduced model, it was necessary to make it attractively affordable to riders and profitable to drivers. The data on record shows that the taxi industry grew exponentially after the emergence of platform-based model (as much as 1900%) which can be attributed to the strategies adopted by the app based taxi operators. OP and Uber have, in a manner, revolutionized the taxi market by providing radio taxi services at abysmally low prices.
122. The Commission does not fully disagree with the Informants that the low prices of OP are not because of cost efficiency, but because of the funding it has received from the private equity funds. But as discussed above, there is no evidence that the access to such funding was inequitable and that the market for financing was not competitive and had aberrations. Moreover, it was their penetrative pricing strategy that facilitated them to garner high market shares in short span of time as well as develop the networks to a size that could provide sufficient positive externalities to the participants of the network.
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potential matches on the other side of the market. This allows for positive cross side network externalities that benefit the users on both sides of the market, i.e. the drivers and riders. Both Uber and Ola are found to be aggressively competing with each other to attract participants, i.e. drivers and riders, on both sides of their platforms, which is necessary for reducing search and matching frictions.
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between drivers and Uber, the DG has not found any case of contravention of Section 3 against Uber. Uber has relied upon this finding to argue that in the absence of any explicit exclusivity clause, no case of Section 3(4) can be made out against it.
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through a threat of deactivation by Uber of a driver partner, which keeps the driver under the control of Uber and also tied to its platform. This in effect causes AAEC and hence the same is anti-competitive in nature.
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associated with matching dispersed drivers and riders which also means lower search cost for these two sides of participants.
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the need to offer discounts/incentives gets obviated. The data collected by the DG during investigation also depicts that the average margin per trip, which is essentially based on the gross billed amount collected from the customers (riders) less the amount spent by Uber on discounts and incentives, had become positive from October-2017 onwards (except in May, 2018).
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Aggregators.3 That being so, the cab aggregators despite being digital platforms are perceived to be the service providers of the ‘ride’ as a product and particularly for this reason, they are considered to be falling in the same market as the radio taxi service providers operating under the asset owned model.
3 Samir Agrawal vs. ANI Technologies Pvt. Ltd. and Ors., Case No. 37 of 2018, available at https://www.cci.gov.in/sites/default/files/37of2018.pdf.
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network strength it has, it may be counterproductive for an antirust regulator to intervene in such an instance.
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drivers available; and as such ‘locking’ in of drivers through incentives cannot be stated to be a bottleneck facility, which can prohibit entry of new players or the expansion of existing players in the relevant market
Sd/Ashok Kumar Gupta (Chairperson)
Sd/Sangeeta Verma (Member)
Sd/Bhagwant Singh Bishnoi (Member)
New Delhi Date: 14/07/2021
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Colour shows how this judgement treated each authority
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6 provisions across 1 enactments
Meru Travel Solutions Pvt. Ltd.
Uber India Systems Pvt. Ltd.
Uber B.V.
Uber International Holding B.V.
Uber International B.V.
Uber Technologies Inc.
Ashok Kumar Gupta
Sangeeta Verma
Bhagwant Singh Bishnoi
As recorded by the court registry
2 orders share this CNR
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