Competition Act, 2002
The Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Regulations, 2011
Notification No. S.O. 93(E) dated January 8, 2013
Notification No. S.O. 673(E) dated March 4, 2016
Notification No. S.O. 674(E) dated March 4, 2016
Notification No. S.O. 675(E) dated March 4, 2016
Notification No. S.O. 988(E) dated March 29, 2017
Notification No. S.O. 2039(E) dated June 29, 2017
At present, thresholds prescribed under the Act (as enhanced by the Central Government vide its Notification No. S.O. 675(E) dated March 4, 2016) are as under:
In case of an acquisition of assets, shares, voting rights or control, the value of assets and turnover of the acquirer (group to which the enterprise would belong, for calculating group-level thresholds) and the enterprise whose assets, shares, voting rights or control have been acquired or are being acquired, are required to be taken into account for calculating jurisdictional thresholds. (See Section 5(a) of the Act)
In this regard, where a portion of an enterprise or division or business is being acquired, taken control of, the value of assets and turnover of the said portion or division or business attributable to it and the value of assets and turnover of the acquirer, is to be taken into account for the purpose of calculating the jurisdictional thresholds. [See GoI Notification no. S.O. 988 (E) published on 29th March, 2017]
In case of acquisition of control by a person over an enterprise when such person already has direct or indirect control over another enterprise engaged in production, distribution or trading of a similar or identical or substitutable goods or provision of a similar or identical or substitutable service, the value of assets and turnover of the portion of an enterprise or division or business (target business) or the enterprise whose control is being acquired (or group to which the enterprise would belong, for calculating group-level thresholds) along with the enterprise over which the acquirer already has direct or indirect control, are required to be taken into account for calculating jurisdictional thresholds.(See Section 5(b) of the Act)
In case of mergers / amalgamations, the value of assets and turnover of the merged or amalgamated entities (or group, for calculating group-level thresholds) should be taken into account for calculating jurisdictional thresholds. (See Section 5(c) of the Act)
Where a portion of an enterprise or division or business is being merged or amalgamated with another enterprise, the value of assets and turnover of the said portion or division or business and or attributable to it and value of assets and turnover of another enterprise, shall be taken into account for the purpose of calculating the thresholds under section 5 of the Act. [See GoI Notification no. S.O. 988 (E) published on 29th March, 2017]
In terms of the provisions of Act, the value of assets is determined by taking into account the book value of assets shown in the audited books of accounts of the enterprise for the financial year immediately preceding the financial year in which (a) the proposal relating to merger/amalgamation was approved by the Board of Directors of the enterprises concerned; or (b) any agreement or other document for acquisition was executed (See sub-section (2) of Section 6 read with Explanation (c) to Section 5 of the Act)
Value of turnover is also determined by applying the same principle.
In terms of GoI notification no. S.O. 988 (E) published on 29th March, 2017, the value of assets is determined by taking the book value of the assets as shown, in the audited books of accounts of the enterprise or as per statutory auditor’s report where the financial statement have not yet become due to be filed, in the financial year immediately preceding the financial year in which the date of the proposed combination falls.
The turnover of the said portion or division or business shall be as certified by the statutory auditor on the basis of the last available audited accounts of the company.
Parties intending to file a notice with the CCI are encouraged to approach the CCI for an informal pre-filing consultation in case of any doubts / queries. However, the advice given during pre-filing consultation is non-binding and may not necessarily reflect the views of the CCI.
A request for pre-filing consultation on substantive issues should be made by the parties intending to file a notice at the earliest and at least 10 days before the intended date of filing, to allow time for allocating a case team for the pre-filing consultation. A copy of draft application comprising of Form I/II/III, as the case may be, and supporting documents, should be forwarded along with the request for scheduling a pre-filing consultation. For further details, please refer to the information on pre-filing consultation on the CCI website.
In addition to the above, CCI also provides pre-filing consultation on interpretational issues relating to Sections 5 and 6 of the Act and the Combination Regulations. In such cases, a request for pre-filing consultations must be sent at least 5-7 days before the meeting is requested to be scheduled. Complete and sufficient details regarding facts of the case including the sector/relevant market, legal provisions, decisional practices of the CCI and of other jurisdictions (if available and material to the facts of the case) should be provided in the request for pre-filing consultations on interpretational issues.
The email seeking pre-filing consultation may be sent to the email id: firstname.lastname@example.org with the subject “Request for pre-filing consultation on interpretational issues”.
Yes. The thresholds in the De Minimis exemption apply to the unit/business/division being acquired.
For example, if enterprise ‘A’ is acquiring a business unit/division of enterprise ‘B’, then for the purpose of determining availability of De Minimis exemption, value of assets and turnover of business unit/division of enterprise B will be taken into account.
In cases of merger / amalgamation, enterprise(s) being merged and wound up, as the case may be, would be considered as Target enterprise. For example, in case of absorption, one existing enterprise is merged into the other existing enterprise and there remains one surviving enterprise. In such situation, the merged enterprise is the target to whom deminimis exemption shall be applied.
In cases of merger / amalgamation between two or more existing enterprises are wound up (amalgamating enterprises) and a new entity is formed (amalgamated enterprise). In such cases, all the amalgamating enterprises shall be treated as ‘target enterprises’ for the purpose of deminimis exemption. Further, in such cases, as all the amalgamating enterprises are ‘targets’ and accordingly their cumulative assets/turnover shall be considered for ascertaining notifiability.
Any share subscription or financing facility or any acquisition, by a public financial institution, foreign institutional investor, bank or venture capital fund, pursuant to any covenant of a loan agreement or investment agreement are not subject to filing requirement under Section 6(2) of the Act. Therefore, approval of the CCI is not required in respect of these transactions.
However, such acquirers are required to file details of the acquisition in Form III with the CCI within 7 days from the date of the acquisition. The details of the acquisition in Form III must include the details of control, the circumstances for exercise of such control and the consequences of default arising out of such loan agreement or investment agreement, as the case may be. (See Section 6(4) and Section 6(5) of the Act)Further, any combination pertaining to a banking company in respect of which the Central Government has issued a notification under Section 45 of the Banking Regulation Act, 1949 is exempt from filing requirements for a period of 5 years. ( Notification No. S.O. 93(E) dated January 8, 2013)
The “other document” means any binding document, by whatever name called, conveying an agreement or decision to acquire control, shares, voting rights or assets.
In cases where a public announcement has been made in terms of the SEBI Takeover Code, regarding an acquisition (of shares, voting rights or control), the public announcement shall be deemed to be the “other document”.
In cases of hostile acquisitions, the “other document” shall be any document executed by the acquiring enterprise, by whatever name called, conveying a decision to acquire control, shares or voting rights.
The notice in respect of a combination is required to be filed in original, along with one (1) copy, and an electronic copy thereof, with the registry of the CCI. The notice should be complete in all respects (must be filed in required format) and accompanied by filing fees. (See Regulation 13(1) of the Combination Regulations) (See also response to Question no. 22 below)
In the event the parties are claiming confidentiality on certain information provided by them in the notice, a public version of the notice, and an electronic version thereof, is also required to be filed. (See proviso to Regulation 13(1) of the Combination Regulations) (See also response to Question no. 24 below)
The notice must also be accompanied by summary(ies) of the combination, as required in terms of Regulations 13(1A) and 13(1B) of the Combination Regulations, along with separate electronic copies thereof.
Detailed instructions on how to file a notice are set out in the Introductory Notes to Forms, Notes to Form I and Regulations 5, 9, 10, 11, 12, 13 and 30 of the Combination Regulations.
Generally, following documents are required to be filed along with the notice (in Form I).
- Certified copy of the authorization in favour of a person signing the notice in the prescribed format.
- Copy of the proof of payment of filing fee.
- Copies of approval of the proposal relating to merger/amalgamation and/or agreement /other document executed in relation to the acquisition or acquiring of control.
- An authorization letter in favour of a person located in India who is authorized to receive communication(s) on behalf of the notifying party(ies) from the CCI.
- Certified copy(ies) of the order(s)/decision(s) passed in other jurisdictions where the proposed combination has been filed and approved.
- Copies of the most recent annual report and accounts of the parties to the combination.
- Copies of all presentations prepared by or for or received by any members of the board of management, or the board of directors, or the supervisory board, as applicable in the light of the corporate governance structure, or the other person(s) exercising similar functions (or to whom such functions have been delegated or entrusted), or the shareholders’ meeting, analysing the combination (only in cases wherein there are overlapping goods/services between the parties to the combination or the parties to the combination are engaged in different stages of production/supply/distribution/storage/sale and service or trade in products or provision of services or the parties to the combination are engaged in supply of complimentary, non-competing but related goods/services).
- Two summary prepared in accordance with sub-regulation (1A) and (1B) of regulation 13 of the Combination Regulations.
- ix. An affidavit in support of the request for confidentiality as specified in regulation 42 of the Competition Commission of India (General) Regulations, 2009 (“General Regulations”)
However, it may be noted that this is not an exhaustive list of documents to be filed along with the notice and, depending on the nature of the combination, other documents may also be required to be filed.
(See Form I, Form II, Introductory Notes to Forms and Notes to Form I)
Any person who is duly authorized by the notifying party may sign the notice (See Regulation 9(1) and 9(3) of the Combination Regulations).In the event the notifying party is an Indian company, a certified copy of the board resolution authorizing the said person(s) to sign the notice must be submitted along with the notice. For body corporate organized/incorporated under foreign laws, the following documents may be submitted:
- for body corporates which are required to pass board resolutions for such authorization, a certified copy of the board resolution authorizing the said person(s) to sign the notice;
- for body corporates which, under the laws applicable to such entities, are not required to pass a board resolution for such authorization, an authorization letter issued by any of any of the key managerial personnel (i.e., Chief Executive Officer or the Managing Director, Company Secretary, Director, Chief Financial Officer or their equivalent as per the applicable law) in favour of the person signing the notice may be submitted. The said authorization should be printed on the company letter head and should, wherever applicable, bear the company seal or its equivalent as per the applicable law.
Notifying parties have the discretion to file a notice either in Form I or Form II, as set out in Schedule II of the Combination Regulations. However, in the following cases, a notice should preferably be given in Form II:
- The parties to the combination are engaged in production, supply, distribution, storage, sale or trade of similar or identical or substitutable goods or provision of similar or identical or substitutable services and the combined market share of the parties to the combination after such combination is more than fifteen per cent (15%) in the relevant market; and
- The parties to the combination are engaged at different stages or levels of the production chain in different markets, in respect of production, supply, distribution, storage, sale or trade in goods or provision of services, and their individual or combined market share is more than twenty five per cent (25%) in the relevant market.
In cases where the parties to the combination have filed a notice in Form I and CCI requires information in Form II to form its prima facie opinion as to whether the combination is likely to cause or has caused an AAEC within the relevant market, CCI shall direct the parties to the combination to file a notice in Form II.
In line with best practices, CCI treats all documents as confidential in terms of and subject to the provisions of Section 57 of the Act. In this regard, the notifying parties are required to submit a request for confidential treatment to the information filed by them. Such request can only be made if making public of such information or parts thereof will result in disclosure of trade secrets or destruction or appreciable diminution of the commercial value of any information or can be reasonably expected to cause serious injury.
The confidentiality request must be submitted by the notifying parties in writing stating that a document or documents, or a part or parts thereof, be treated confidential, along with a statement setting out cogent reasons for such treatment and, to the extent possible, the date on which such confidential treatment shall expire. In this regard, it may be noted that mere statement(s) that the document(s) or information or part(s) thereof contain trade secret(s) or are of such commercial value that disclosure of the same will cause serious injury, shall not be sufficient ground for accepting the request for confidentiality. A request for confidential treatment of information should be accompanied by an affidavit stating that the conditions prescribed for the grant of confidential treatment set out in Regulation 35 of the General Regulations are satisfied. (See Regulation 30 of the Combination Regulations and Regulations 35 and 42 of the General Regulations)
Please note that in the event the notifying party claims confidentiality on the information provided in the notice and /or responses or other documents submitted during the course of inquiry by the CCI, it is required to submit a public version of the notice and /or responses of other documents filed with the CCI. (See Regulations 13(1) and 13(2) of the Combination Regulations and Regulations 35(5) and 35(6) of the General Regulations)
CCI may initiate suo motu inquiries into mergers, amalgamations and acquisitions that have not been notified to it, as to whether such a combination has caused or is likely to cause an AAEC. However, CCI will not initiate inquiries after the expiry of 1 year from the date on which the combination has taken effect. (See Section 20(1) of the Act) (See Case No. C-2015/01/241, GE/Alstom & Case No. C-2015/02/249, Piramal/Shriram)
In such cases, CCI may commence proceedings under Section 43A of the Act for failure to file notice in terms of Section 6(2) of the Act.
Further, under the Act, CCI should pass an order on a combination under Section 31 of the Act within two hundred and ten days from the date of the notice given to CCI under Section 6(2) of the Act. The said timeline includes both Phase I and Phase II assessment of combinations by the CCI.
Please note that these timelines are subject to clock-stops provided in the relevant provisions of the combination Regulations and the Act. (See Regulations 5(4), 5(6), 9(2), 14(2A), 14(5), 19(2) and 19(3) of the Combination Regulations and Sections 31(11) and 31(12) of the Act)
However, it may be noted that the time taken by you in removing such defects or furnishing the required information including document(s) shall be excluded from statutory time limits as explained in question no. 29 above.
(See Regulations 14(3), 14(5) and 14(6) of the Combination Regulations, Introductory Notes to Forms and Notes to Form I)
Banking: Turnover shall be sum of the following items: Operating income i.e interest income of a baking enterprise and other income such as (i) Commission, exchange and brokerage, (ii) income earned by way of dividends, (iii) Profit (loss) on sale of investments, (iv) leasing income, (v) Profit (loss) on exchange transactions.
Insurance: The value of the turnover would be the gross premium without deducting the reinsurance ceded, and other income such as income from investments in shares, securities, real estate or other assets would be considered as a part of turnover where such investments amount to control (as per decisional practice of the Commission) over the enterprises involved.
The onus of determining whether a transaction amounts to a notifiable combination rests on the parties. In case audited financial statements of the previous financial year are unavailable, you may determine notification requirements on the basis of unaudited financial statements or best available estimates.
However, failure to notify a transaction which satisfies jurisdictional thresholds based on audited financial statements of the previous financial year would attract penalty under the provisions of Section 43A of the Act.
Acquisition of up to 25% shares where the acquirer does not acquire control and the acquisition is solely as an investment or in ordinary course of business, need not normally be notified to the CCI for prior approval.
The acquisition of less than 10% of the total shares or voting rights of an enterprise shall be treated as solely as an investment. Provided that in relation to the said acquisition,-
- the Acquirer has ability to exercise only such rights that are exercisable by the ordinary shareholders of the target enterprise the extent of their respective shareholding; and
- the Acquirer is not a member of the board of directors of the target enterprise and does not have a right or intention to nominate a director on the board of directors of the such enterprise and does not intend to participate in the affairs or management of the such enterprise.
The ‘Group’ has been defined by the Act to mean two or more enterprises which, directly or indirectly, are in a position to —
- exercise twenty-six per cent or more of the voting rights in the other enterprise; or
- appoint more than fifty per cent of the members of the board of directors in the other enterprise; or
- control the management or affairs of the other enterprise.
Further, the Central Government vide a notification has exempted a ‘Group’ exercising less than 50 % of voting rights in other enterprise from the provisions of section 5 of the said Act for a period of five years from the date of notification i.e. 04.03.2016
Several inter-related transactions may constitute a single combination, if the ultimate intended effect of the transaction is sought to be achieved by such series of steps / smaller individual transactions. In such cases, a single notice covering all these steps/transactions must be filed by parties. Some of the decisions in which CCI has treated multiple transactions as inter-connected steps of a single combination are: Case No. C-2014/10/219, VISCAS Corporation/Sterlite Technologies Limited; Case No.C-2014/12/234, TPG/Manipal; Case No.C-2015/02/249, Piramal Enterprises Limited; Case No. C-2015/04/267, AXA India/SociétéBeaujon/Bharti AXA General Insurance; Case No. C-2015/05/270, Advent/MacRitchie/Crompton Greaves; Case No. C-2015/06/285, Sapphire Food/Yum! India,;Case No.C-2015/07/290, Koneru Holdings Limited; Case No.C-2015/10/329, Baramati Speciality Steels/Kalyani Investment/KSL Holdings; and Case No.C-2015/10/334, Blue Star Limited/Blue Star Infotech Limited/Blue Star Infotech Business Intelligence and Analytics Private Limited.