Sonam Mathur Shubhang Joshi December 22 2022 CCI penalises MMT and OYO for anti-competitive conduct in the hotel bookings market TT&A | Competition & Antitrust - India Sonam Mathur, Shubhang Joshi Competition & Antitrust IntroductionFactsDecisionCommentIntroductionOn 19 October 2022, the Competition Commission of India (CCI) fined the leading Indian online travel agents (OTAs) MakeMyTrip India Pvt Ltd (MMT) and Ibibo Group Private Limited (Goibibo) (collectively referred to as "MMT-Go") 223,480,000 rupees (approximately $27.09 million) for abusing their dominant position in the "market for online intermediation services for booking of hotels in India". The CCI also fined a leading budget hotel chain in India, Oravel Stays Pvt Ltd (OYO), 168,880,000 rupees (approximately $20.47 million) for entering into an anti-competitive agreement with MMT-Go. In addition to imposing monetary penalties, the CCI gave behavioural directives to MMT-Go in order to ensure fair competition in the market.FactsThe matter arose out of a complaint filed by the Federation of Hotel & Restaurant Associations of India (FHRAI) alleging anticompetitive conduct against MMT-Go and OYO. The CCI, through an order issued on 28 October 2019, prima facie found that the parties had engaged in anti-competitive conduct and accordingly directed the Office of the Director General (DG) to investigate the matter. Separately, on 5 February 2020, the CCI approved the impleadment application filed by Casa2 Stays Pvt Ltd (FabHotels), a competitor of OYO. A separate complaint was thereafter filed by Rubtub Solutions Pvt Ltd (Treebo), another competitor of OYO. On 24 February 2020, the CCI clubbed the matter together with the ongoing investigation against MMT-Go.Broadly, the parties alleged that MMT-Go had, among other things:imposed "wide" price parity clauses upon hotel partners;indulged in deep discounting;charged excessive commissions from hotel partners; andmisrepresented information about certain hotels.The complainants, Treebo and FabHotels had also been delisted from the MMT-Go platform pursuant to the exclusive agreement entered into between MMT-Go and OYO.Interestingly, during the investigation period, FabHotels and Treebo had sought interim relief from the CCI, requesting that they may be relisted on the platform pending final adjudication in the matter. The CCI allowed the interim relief through an order issued on 9 March 2021. However, the Gujarat High Court struck down the CCI's interim order on procedural grounds and directed CCI to hear the matter afresh. The CCI ultimately disposed of the interim relief applications as MMT consented to relist FabHotels and Treebo on the platforms.DecisionThe CCI defined the relevant market as the "market for online intermediation services for booking of hotels in India". It was noted that the OTAs had both end-users and hotels as two distinct consumer groups on its platforms. However, the CCI focused more on the perspective of the hotels, given the nature of the complaints.The CCI noted that online and offline channels were not part of the same relevant market, and even within the online segment, OTAs are not substitutable with online meta or search platforms and hotels' own websites. The CCI noted that the distribution channels were complementary to each other and, accordingly, the hotels required visibility across all such channels.Thereafter, in order to assess the dominance of MMT-Go in the relevant market, the CCI considered the "stayed room nights" (ie, the volume of bookings) to assess dominance. The CCI noted that higher volumes (as opposed to value) of bookings meant the presence of a greater number of end users and hotels on the platform, demonstrating greater network effects. The CCI noted that between 2017-2020, MMT-Go consistently had high and increasing market shares, while its competitors either lost market shares or retained market shares of below 10%. Accordingly, the CCI concluded that MMT-Go held a dominant position in the relevant market between 2017 and 2020.The CCI concluded that MMT-Go had abused its dominance as follows.Imposing across platform parity restrictions (price parity and room parity restrictions) The CCI observed that MMT-Go had imposed "wide" price parity and hotel room parity clauses upon its hotel partners. It also noted that MMT-Go had offered very large discounts to its customers and mandated certain hotels to be exclusive to MMT-Go during the busiest booking periods. Accordingly, the CCI concluded that the deep discounts, exclusivity condition and parity conditions together created an ecosystem that reinforced MMT-Go's dominant position in the market.Displaying misleading information on platformThe CCI observed that MMT-Go would list certain delisted properties as "sold out" on its platform. It noted that such conduct would mislead customers and also result in the exclusion of such hotels from the market.In addition, the CCI held that the commercial agreement between MMT-Go and OYO which resulted in the delisting of FabHotels and Treebo was anti-competitive in nature. It noted that the delisting had caused commercial hardship to Treebo and FabHotels and had unfairly tilted the competition among budget hotel operators in favour of OYO.Penalties Accordingly, the CCI imposed monetary penalties on MMT-Go and OYO. It also issued certain behavioural directives to MMT-Go – among other things, to:modify its agreements with hotels to abandon the room availability parity obligations and the exclusivity conditions;provide access to its platforms on a fair, transparent and non-discriminatory basis; andprovide transparent disclosures as regards the properties not available on its platform (ie, whether such non-availability is due to the exhaustion of available rooms or on account of the termination of any contractual arrangements with a hotel).MMT-Go was also directed to submit a compliance report within 60 days of receipt of the order.ChallengeMMT-Go and OYO have challenged the CCI's order before the National Company Law Appellate Tribunal (NCLAT) and the NCLAT has admitted the appeal subject to the deposition of 10% of the penalty amount to NCLAT. No stay was granted on the behavioral directives issued to MMT-Go by the CCI. Interestingly, on 14 December 2022, the Delhi High Court clarified in a writ petition filed by MMT-Go that the NCLAT's directions meant that the recovery of the remaining 90% of the penalty amount would be stayed until the disposal of the appeal.CommentThis is a landmark decision of the CCI that offers an insight into its approach to regulating platform markets in India. The CCI carried out a detailed exercise to delineate the relevant market and assess the competitive harms, keeping in mind the two sets of consumer groups on the intermediation platform. Interestingly, MMT-Go relied heavily on certain economic reports to buttress its arguments, which were rejected by the CCI. However, no supporting economic assessment was conducted.In fact, the directions imposed upon MMT-Go to provide fair, transparent and non-discriminatory access to its platforms appear to be far-reaching. Such directions allude to MMT-Go being considered an important "gateway" for the budget hotel industry, despite the fact that no such assessment was made. Given the presence of alternatives to MMT-Go (eg, Booking.com, Yatra and Cleartrip) and the relative contestability of the market in question, it remains to be clarified why such obligations were necessary in this case.Additionally, the CCI's decision to consider the entire turnover of MMT-Go to calculate its penalty, rather than restricting itself to the "relevant turnover" or the relevant segment (ie, hotel booking in this case) is noteworthy. It observed that revenue of of one segment might not be able to adequately capture the interdependent and integrated nature of the platform ecosystem. This sets up a new precedent regarding relevant turnover calculations in digital market cases and will surely be challenged by the parties before the NCLAT.The NCLAT's review of the CCI's order will therefore not just be a significant test of the CCI's qualitative approach but will also likely be instrumental in setting out the foundations of the jurisprudence in the digital markets sector as a whole.For further information on this topic please contact Sonam Mathur or Shubhang Joshi at TTA by telephone (+91 11 46299999) or email ([email protected] or [email protected]). The TTA website can be accessed at www.tta.in.