Frequently Asked Questions

Disclaimer: These FAQs are not a substitute for applicable legislation or expert advice. This information is of a general nature only and is not exhaustive. Any views expressed or statements made should not be taken to indicate how the Commission may decide on any issue(s) in the future. Users are accordingly advised to carefully study the provisions of the Act, Combination Regulations, other regulations issued by the Commission and the notifications issued by the Central Government, and seek expert advice from suitably qualified professionals, where necessary.

Are all M&As required to be notified to the Commission? What is meant by a combination? What is the scope of Section 5 of the Act? What are the threshold values prescribed under Section 5 of the Act? For terming an M&A as Combination, should all the thresholds mentioned in Table 1 be satisfied? Under the enterprise-level thresholds, which are the enterprises whose assets and turnover are considered for testing of thresholds prescribed under the Section 5 of the Act? Under the group-level thresholds, what are the enterprises whose assets and turnover are considered for testing of threshold prescribed under the Section 5 of the Act? What is meant by an acquisition? What is meant by a merger or amalgamation? What is meant by shares? What is meant by group? What is meant by control? For the purpose of determining whether an M&A transaction meets the thresholds prescribed under Section 5 of the Act, financials statements of which year are to be considered? Which year is considered the financial year in which the date of the proposed merger falls? When a portion, a division or a business of an enterprise is being acquired, should the value of total assets and turnover of the seller enterprise or the value of assets and turnover of the portion/division or business be considered for the purpose of determining if the acquisition is a Combination? What may be done when the target's financial statements have not been audited? Should Intra Group Turnover be considered part of the turnover for the purpose of Section 5 of the Act? What is the typical structure of a fund management activity? Has the Commission issued any order in respect of the acquisition of fund management businesses? In cases of Real Estate Investment Trusts (REIT) or similar structures, should the supplies of these structures be attributed to their manager? In cases of acquisition of any investment management businesses, would the value of assets and turnover of the controlled portfolio enterprise [i.e., controlled investee entities of the fund] also be relevant for the purpose of computing threshold under Section 5 of the Act as well as the De-Minimis exemption threshold? Would an acquisition of control over management or assets of any enterprise that meet financial thresholds prescribed under Section 5 of the Act not be considered a combination if the acquirer does not acquire beneficial interest/ownership over the enterprise? For assessing that any financial thresholds prescribed under Section 5 of the Act are met by any acquisition, merger or amalgamation, would it be relevant whether the value of assets and turnover of the existing controlled portfolio enterprises are beneficially owned or not, for the purpose of computing threshold under Section 5 of the Act? Should the assets and turnover of the controlled portfolio enterprise of a fund be attributed to the investment manager only if both the fund manager and trustee are acquired or subjected to common control? In cases of fund management structures, should supplies of goods and services of these structures or their portfolio enterprises be attributed to their manager or the person controlling such manager? In cases where the services of the investment manager can be terminated by the trustee, whether it will change the position regarding existence of control of fund manager over management and affair of the fund? In case of fund management structure, for the purpose of Section 5 of the Act, should De-Minimis exemption, assets and turnover of controlled portfolio entities, and for the purpose of identification of horizontal overlaps, vertical interfaces and complementary activities, supplies of goods and services by the fund or their portfolio entities, always be attributed to the manager of the fund and person controlling such manager? Do the financials of an enterprise need not be considered for the purpose of Section 5 of the Act, De-Minimis exemption, etc., merely because applicable accounting standards do not require the consolidation of financials of such entity? Where an acquirer holds partial ownership/control in an enterprise and enters or proposes to enter another acquisition, merger or amalgamation, should only a proportionate share in the financials of such partially owned/controlled be considered for assessing the financial thresholds prescribed under Section 5 of the Act for the envisaged acquisition, merger or amalgamation? Is there any provision in the Act for granting exemption from its applicability? Are any of the exemptions granted by the Central Government in exercise of power conferred under Section 54 of the Act in relation combinations in vogue? Notification no. S.O. 2039(E) published on 29th June 2017 provides exemption to every person or enterprise who is a party to a combination from giving notice within 30 days as mentioned in Section 6(2) of the Act. Does this mean that, during the exemption period, there is no obligation to give a notice to the Commission under Section 6(2) of the Act? Pursuant to notification no. S.O. 2039(E) published on 29th June 2017, the timeline of 30 days for giving notice to the Commission has been exempted. Does this mean that, before giving notice to the Commission or before issue of the order by the Commission by Section 31 of the Act, the combination can be consummated in part or full? What are the conditions to be satisfied for availing the benefit of De-Minimis exemption? Pursuant to notification no. S.O. 2039(E) published on 29th June 2017, the timeline of 30 days for giving notice to the Commission has been exempted. Does this mean that, before giving notice to the Commission or before issue of the order by the Commission by Section 31 of the Act, the combination can be consummated in part or full? Are there any categories of combinations in relation to notice under Section 6(2) of the Act that need not normally be filed? What are the categories of the combinations contained in Schedule I of Combination Regulations? Explanation to Item 1 of Schedule I of the Combination Regulations provides that acquisition of less than ten per cent (10%) of the total shares or voting rights of an enterprise shall be treated solely as an investment if certain conditions are satisfied. Does this mean that the acquisition of shares above 10% of the share capital of the target cannot qualify solely as an investment? One of the conditions for availing the benefit of Item 1 of Schedule I of the Combination Regulations is that the acquisition should be solely an investment. Which type of acquisitions can be considered solely as investments? My previous year’s financials are still being audited. How do I calculate assets and turnover for my companies? (36) In an acquisition, the global agreement has been executed but local agreement for India has not been executed. Can I go ahead with the global consummation leaving the India leg till a local agreement is signed? I am planning to acquire less than 25% of equity shares of a listed company from secondary market. Do I need to notify this combination to CCI? What is the meaning of ‘control’ for the purposes of the Act? What is the meaning of ‘Group’ for the purposes of the Act? The combination involves a series of steps/transactions. Can I file a single notice with CCI covering these multiple steps / transactions? One of the conditions for availing the benefit of Item 1 of the Schedule I of the Combination Regulations is that the transaction should be in the ordinary course of business ? Benefit of Item 2 of Schedule I of the Combination Regulations is available to the acquirer if, prior to the acquisition, it has 50% or more shares or voting rights in the enterprise whose shares or voting rights are being acquired, except in cases where the transaction results in transfer from joint control to sole control. What is understood by transfer of joint control to sole control? Benefit of Item 2 of Schedule I of the Combination Regulations is available to the acquirer if, prior to acquisition, it has 50% or more shares or voting rights in the enterprise whose shares or voting rights are being acquired, except in cases where the transaction results in transfer from joint control to sole control. Is the benefit of Item 2 available where a person does not acquire share or voting right but otherwise gains control? One of the conditions for availing the benefit of Item 3 and Item 5 of Schedule I is that acquisition of assets, stock-in-trade, raw materials, stores and spares, trade receivables and other similar current assets, as the case may be, should be in the ordinary course of business. In this context, what is meant by ordinary course of business? The condition for availing benefit of Item 6 of the Schedule I is that acquisition of shares or voting rights pursuant to a bonus issue or stock splits or consolidation of face value of shares or buyback of shares or subscription to rights issue of shares (say Corporate Action) should not lead to acquisition of control. Would the benefit of this Item be available in the following circumstances? - Pre-corporate action shares or voting rights percentage is less than 25% and post-corporate action is likely to exceed 25%; - Pre-corporate action shares or voting rights percentage is less than 50% and post-corporate action is likely to exceed 50%; or - Pre-corporate action shares or voting rights percentage is less than 75% and post-corporate action is likely to exceed 75%. A condition for availing the benefit of Item 6 of Schedule I of the Combination Regulations is that acquisition of shares or voting rights should be pursuant to a bonus issue or stock splits or consolidation of face value of shares or buyback of shares or subscription to rights issue of shares (say corporate action) and it should not lead to acquisition of control. Would the benefit of this Item be available in the following circumstances? - A person gaining control (Gainer of Control) because it is not participating in buyback; - Gainer of Control is gaining control because it is not participating in buyback to the full extent of his entitlement; - Gainer of Control is gaining control because it is subscribing to the rights issue in excess of its entitlement; - Gainer of Control is gaining control because it got the right entitlement renounced in its favour; - Gainer of Control is gaining control because other right entitlement holders are not subscribing to the right issue. Who can approach CCI for pre-filing consultation prior to making a filing? How can parties seek certain clarifications on the filing procedures interpretation of the Act and Combination Regulations? What is the procedure for requesting a pre-filing consultation? What details/documents need to be provided for seeking pre-filing consultation on interpretational issues? Can the parties also discuss a draft Form I/Form II with CCI before making a filing? I require certain clarifications on the filing procedures/interpretation of the Act and Combination Regulations. Can I contact CCI before making a filing? Can I also discuss a draft Form I with CCI before making a filing? How do parties to the combination decide which form needs to be filed for notifying to CCI? What documents should be filed along with the notice in Form I? Is there any fee to be paid for filing the notice? How does a Party notify a combination to CCI? Does CCI provide the facility of e-filing? If a combination involves a series of steps, can I file a single notice? Which parties are required to file the notice? Does CCI grant confidentiality over information that has been submitted in a notice? How is a confidentiality request made over documents filed with CCI? After we have filed a notice with CCI, can we inform CCI of any changes in the information provided in the notice? Is there any provision which allows parties to withdraw the notice filed with the Commission and refile the same? Will the filing fees be adjusted in case of re-filing? How would my notice get invalidated? What are the grounds for invalidation of notice? When does CCI terminate the combination investigation procedure? What are the timelines for review of combinations by CCI? What is the procedure for review of combinations by CCI? What is Phase I investigation? Does CCI seek information from parties to the combination or third parties during Phase I investigation? When does Phase II investigation begin? What are the steps of the Phase II investigation or what is the procedure for investigation of combination under Section 29(1) of the Competition Act, 2002? Can CCI call for a report of the Director General (DG) in combination cases? What is the procedure for publication where the Commission directs the parties to the combination to publish details of the combination? What are the factors of assessment considered by CCI in combination cases? What economic tools are used for the assessment of combinations and for defining relevant markets? Are the parties to the combination required to provide relevant market definition for the purposes of assessment of combination? What are the factors to be considered by the parties to the combination for determining relevant market? What order(s) can the Commission pass upon assessment of a combination? Where can CCI approve a combination with modifications? What is the procedure for approval of combinations with modification? When does the Commission appoint a monitoring agency? Does CCI accept voluntary modification before forming a prima facie opinion under Section 29(1) of the Act? Can the parties propose voluntary modification after the issue of show cause notice by the Commission under Section 29(1) of the Act? Are IBC transactions notifiable to the Commission? How can it be ascertained whether an IBC transaction is notifiable? Can an IBC transaction be filed through the Green Channel route? If yes, what is the process of filing IBC transactions through the Green Channel? If, there is more than one applicant in the IBC process of a company, do all applicants need to apply for approval under the Competition Act, 2002? When does a party need to approach the Commission for filing notice under the CIRP process of IBC? CCI has reviewed various M&As which were notified pursuant to IBC proceedings. How many IBC cases have been filed so far and in which sectors? What are some of the cases associated with IBC? What are standstill obligations? What is the purpose and objective of standstill obligations? Considering that part-consummation of a combination may also contravene standstill obligations, does it imply that the parties cannot initiate any activity/action in relation to the proposed combination? What are the specific instances of action and arrangements which have been considered contravention of standstill obligations by the Commission in its decisional practice so far? What precautions do the parties need to keep in mind after notifying and before approval to adhere to standstill obligations? What is gun jumping? How does the Commission deal with cases where a party fails to notify the transaction to the Commission? What is the proceeding under Section 43A of the Act? What is the minimum penalty and the maximum penalty that can be imposed by the Commission under Section 43A of the Act? What are the consequences of false statement, omission to state any material fact, etc., under the Act? What is Green Channel Filing? What is the advantage of Green Channel Filing? Which combinations are eligible for Green Channel Filing? Is there are separate form for filing a notice under Green Channel? Is there any additional fee for availing Green Channel Filing? What if the parties are unsure about whether a proposed combination is eligible for Green Channel? How to avail the facility of PFC in case of Green Channel? What happens if a notice is filed under Green Channel and it is later found that it is not eligible for filing under Green Channel? Is the option of filing under the Green Channel route normally availed by the business stakeholders? How many Green Channel cases have been filed so far?