Case Nos. 47 and 56 of 2016. Case: Indian Competition Review and Ors. Vs Gateway Terminals India Private Limited (GTIPL) and Ors.. Competition Commision of India

Case NumberCase Nos. 47 and 56 of 2016
CounselFor Appellant: Harish Vaidyanathan Shankar, Nisha Mohandas, Advocates and Pranav Mehra, Representative and For Respondents: Arun Kathpalia, Arjun Khera, Dhrupad Das and Aakarsh Narula, Advocates, Ravi Gaitonde, COO and Giriraj Deshpande, C.S.
JudgesG.P. Mittal, J. (Member), Devender Kumar Sikri, Chairperson and U.C. Nahta, Member
IssueCompetition Act, 2002 - Sections 19(1)(a), 26 (1), 26(2), 3(4), 4, 4(2)(b)(i), 4(2)(c), 4(2)(d), 4(2)(e)
Judgement DateFebruary 08, 2017
CourtCompetition Commision of India


Order under Section 26(2) of the Competition Act, 2002

  1. This order shall dispose of the informations filed by Indian Competition Review (in Case No. 47 of 2016) and Shri Subodh Kumar Sharma (in Case No. 56 of 2016) ('Informants') under Section 19(1)(a) of the Competition Act, 2002 (the 'Act') against Gateway Terminals India Private Limited or APM Terminals, Mumbai ('GTIPL'/'OP 1') and APM Terminals, Pipavav or Gujarat Pipavav Port Ltd. ('GPPL'/'OP 2') alleging, inter alia, contravention of the provisions of Sections 3 (4) and 4 of the Act. In Case No. 47 of 2016, APM Terminals Inland Services (Main) ('OP 3'), APM Terminals Inland Services (Annex) ('OP 4') and APM Terminals Management B.V. ('OP 5') have been made proforma parties to the case (collectively, OP 1 to OP 5 are hereinafter referred to as 'OPs').

  2. As per the informations, GTIPL/OP 1 is a joint venture between APM Terminals and Container Corporation of India (CONCOR). It is one of the three container terminals operating from Jawaharlal Nehru Port (JNP) at Navi Mumbai having 30 years license to provide container handling services. APM Terminals is a ports and terminals company of the maritime giant the A.P. Moller-Maersk Group and it is one of the largest container terminal operators in the world. OP 2, a public private partnership enterprise located in Gujarat, is stated to be managed and operated by APM Terminals and it is engaged in the activity of handling of containers, bulk and liquid cargo traffic. It is stated that OP 3 and OP 4 are the container freight stations (CFSs) operating within JNP, managed and operated by APM Terminals and OP 5 is the parent company of APM Terminals. As per the Informants, OPs are group companies under the aegis of APM Terminals.

  3. It is stated in the informations that JNP is the largest container port in India with container traffic comprising of 89% of the total cargo traffic handled in tonnage during 2014-15 in India. It is run by the Jawaharlal Nehru Port Trust (JNPT), an autonomous body constituted under the Major Port Trusts Act (MPTA), 1963. JNP has five container terminals, out of which three terminals viz. Jawaharlal Nehru Port Container Terminal (JNPCT), Nhava Sheva International Container Terminal (NSICT) and GTIPL are already in operation. It is stated that JNPCT is run by JNPT, NSICT is run by a consortium of P&O Australia Ports, Konsortium Perkapalan Behrad and DBC Group of Companies and GTIPL/OP 1 is run by APM Terminals and CONCOR. The fourth terminal is being developed on Design, Built, Fund, Operate and Transfer (DBFOT) basis for a concession period of 30 years by PSA International (PSA) and the fifth terminal has been partially operationalised since April, 2015. It is stated that APM Terminals is the largest shareholder with 43.01% shareholding in GPPL/OP 2.

  4. The Informants have alleged that OP 1 is abusing its dominant position in the market of container terminal services. It is averred that OP 1 is not only leveraging its dominance in the unregulated market for the services of CFSs but also routing/diverting traffic from its terminal in Mumbai to Pipavav to increase its monopoly profits. This is being done so...

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