This chapter addresses some salient features of the law relating to remedies in merger cases in India.
Competition law in India is governed by the Competition Act 2002 (Act) and a number of regulations. Section 5 of the Act states that acquisitions, mergers and amalgamations crossing specified assets or turnover thresholds (collectively referred to as ‘combinations’) must be notified in advance to the Competition Commission of India (CCI). Detailed provisions on the handling of notifications are contained in the Procedure in Regard to the Transaction of Business Relating to Combinations Regulations 2011, as last amended in October 2018 (the Combination Regulations). Section 6 of the Act prohibits entry into a combination that causes or is likely to cause an appreciable adverse effect on competition (AAEC) within the relevant market in India. Such combinations are void under the Act.
Since the Indian merger control regime came into force in June 2011, there have been (at the time of writing) over 750 filings. To date, no combination has been prohibited. The vast majority of notified combinations have raised no competition concerns. However, in a relatively small number of cases – around 40 to date – remedies (referred to as ‘modifications’ in the Act) have been required to secure clearance in Phase I, or, after investigation, in Phase II. All of these cases may be found in the ‘Combinations’ part of the CCI’s website. There has been an active use by the CCI of its power to require remedies to address competition concerns before clearance. Eleven published cases have involved divestiture to address horizontal overlap concerns, with one of these – Bayer/Monsanto – also including non-structural remedies. In the Schneider Electric case, non-structural remedies alone were, unusually, used to address horizontal overlap concerns. One case, PVR, involved the exclusion of certain business from the scope of the proposed combination. Eight cases have involved using non-structural remedies to address access concerns, spillover effects and consumer protection issues. Sixteen cases have been exclusively concerned with non-compete clauses. A recent case, Hyundai and Kia, saw non-structural remedies used to address the risk of discrimination by a transportation services provider in which the two original equipment manufacturers (OEMs) sought to invest.
Some of the cases have involved global mergers subject to review in multiple jurisdictions. The multi-jurisdictional elements have generally not been addressed in the CCI’s published orders. However, in Dow/DuPont and Linde/Praxair, the CCI found that a remedy accepted by the European Commission would address an Indian AAEC concern. The CCI often pays regard to practice elsewhere in designing remedies. The CCI expects the parties to keep it abreast of developments in other jurisdictions. It will engage with other competition authorities and it frequently seeks waivers from the parties allowing it to do so.
After an outline of the applicable procedures, this chapter addresses the way in which the CCI has addressed competitive harm in its choice of remedies. The main elements of divestiture remedies are briefly addressed. The framework for securing compliance with modifications is then considered.
A broad distinction may be drawn between modifications in the Phase I review, where the parties alone may offer modifications to the CCI, and modifications in the Phase II review, where the CCI will take the lead in proposing modifications. However, there is a ‘grey zone’ after Phase I has ended and before an investigation starts under Phase II, where parties can offer modifications.
With respect to the notifiability of combinations, in June 2017 the Indian government removed the requirement to notify combinations within 30 calendar days of the relevant trigger event. This has not only made it easier for parties to think through possible modifications in advance, but also may help parties in coordinating their approach where filings are required in several jurisdictions.
Phase I review
In Phase I the parties may voluntarily offer modifications to avoid the transaction moving to a Phase II review. The CCI will evaluate and, where appropriate, require the parties to accept the modification. There are usually discussions between the parties and the CCI before the CCI accepts the proposals. Additional time of up to 15 days needed by the CCI to evaluate the offered modification is not included in the 30-working-day time limit for Phase I and the overall 210-day period for the CCI to approve or prohibit a combination.
The ‘grey zone’
There is a ‘grey zone’ between the formation of a prima facie opinion that a combination will have an AAEC and the decision to launch an investigation. Under Section 29(1) of the Act, the CCI will issue a ‘show cause’ notice to the parties asking them to respond why an investigation should not be conducted. Up to October 2018, there were no specific provisions in the Combination Regulations addressing the making of modification proposals in the response; however, the CCI accepted that the parties could then offer modifications that could result in clearance without the CCI proceeding to formal publication and investigation. This happened in Mumbai International Airport, Nippon Yusen Kabushiki  and China National Agrochemical Corporation. In PVR, commitments were offered in response to the ‘show cause’ notice and some of these commitments were accepted by the CCI in its final order. This possibility of offering modifications was formalised in October 2018 when the Combination Regulations were amended to allow the parties, along with their response to the ‘show cause’ notice, to offer modifications. The additional time of up to 15 days needed by the CCI to evaluate the offered modification is excluded from the statutory time periods for the CCI to approve or prohibit a combination.
Phase II review
If, following the parties’ response to the ‘show cause’ notice, the CCI decides to conduct an investigation, the CCI may itself propose modifications to the parties if it considers that these may eliminate the AAEC. Although the parties have an opportunity to accept such remedies or propose amendments to the CCI proposal, the CCI has the ‘whip hand’ and has, on occasion, adopted a ‘take it or leave it’ approach.
In all the cases to date, the CCI tailored the remedies to the specific circumstances, often after considerable negotiation on remedies during the Phase II investigation.
A number of possible outcomes are provided for in the Act.
First, the parties may accept the modification proposed. If they do so, they must carry it out within the period specified by the CCI; if they fail to do so, the combination will be deemed to have an AAEC, and the CCI will deal with it in accordance with the Act. This has happened in only two cases, Dow/DuPont and Linde/Praxair.
Second, where the proposed modification is not accepted within 30 working days and the parties do not propose any amendment within that period, the combination will be deemed to have an AAEC and the CCI will deal with it in accordance with the Act. This has not happened to date.
Third, if the parties do not accept the CCI’s proposal, they may, within 30 working days, submit an amendment; if the CCI agrees with the amendment submitted, it shall, by order, approve the combination. This occurred in Sun/Ranbaxy, Holcim/Lafarge, PVR, Bayer/Monsanto and Schneider Electric.
Fourth, if the CCI does not accept the amendment, the parties are allowed a further period of 30 working days to accept the modification originally proposed by the CCI. If they fail to do so, the combination will be deemed to have an AAEC and the CCI will deal with it in accordance with the Act. This has not occurred to date.
In Agrium/PotashCorp the parties appealed to the National Company Law Appellate Tribunal (NCLAT) against a refusal by the CCI to extend the 30-working-day period for submitting their acceptance of the proposal for modification. The NCLAT granted a six-week extension. After discussions between the parties and the CCI, the parties submitted a new proposal that was accepted by the CCI, which noted that this did not have a material effect on the CCI’s original proposed amendment. The NCLAT held that the proposed modified terms be treated as approved by it and disposed of the appeal.
Unlike in the EU, in India there is no formal process of market-testing the remedies. However, the CCI may call for information from any enterprise while inquiring whether a combination has caused or is likely to cause an AAEC. It has frequently availed of this possibility in Phase I reviews. In Phase II, the parties are required to publish details of the combination and the CCI may invite any affected person to file written objections. Although written objections have frequently been received in Phase II reviews, it does not appear from the published decisions that the CCI has tried to market-test any proposed remedies. However, in PVR, the CCI did seek information from real estate developers on the timing of likely entry into the multiplex cinema market and took this into account in assessing the scope of the remedy.
Addressing competitive harm: the CCI orders
Competitive harm is addressed in India in terms of AAEC. The term AAEC is not defined in the Act and there are no general guidelines as yet. The factors to be taken into account by the CCI in determining whether a combination has an AAEC are set out in Section 20(4), and a couple of these factors describe competitive harm.
The prospective competitive harm identified by the CCI is, of course, critical in the choice of remedy. In some but not all cases, the CCI has set out in detail the competitive harm it has identified and the factors taken into account in arriving at this conclusion, and shown how the remedies address the harm.
In a number of cases, the CCI has accepted or proposed structural remedies where a proposed combination would result in high combined market shares and unacceptable increases in levels of concentration. In all these cases, the CCI has tailored the remedies to the specific circumstances in each of these cases. The CCI has not followed a ‘one size fits all’ approach. ‘Divestiture’ may be of products, businesses or shareholdings. Structural remedies akin to divestiture include commitments to exit a business or not to re-enter a market.
A number of cases have involved commitments offered by the parties in Phase I. In ZF Friedrichshafen, the parties had combined market shares of 60–75 per cent, 45–55 per cent and 20–30 per cent in various steering systems markets. The acquirer voluntarily committed to divest its shareholding in a joint venture (JV) it had with another parts supplier, which would leave it with an insignificant market share. The divestment was in fact completed before the date of the CCI clearance order.
In Abbott Laboratories, the CCI found that the combined market shares of the parties in the relevant medical devices market was 90–100 per cent, with the other competitor having zero to 5 per cent. The CCI considered that this enhanced the merger entity’s market power and noted that the market was already highly concentrated. The proposal to divest the business of the target in the relevant market on a worldwide basis would remove the overlap between the parties in India and address its concerns.
FMC  involved a proposed combination following on from the commitment in Dow/DuPont to divest certain crop protection businesses (see below). The CCI identified five overlapping markets where – taking into account high combined market shares, substantial Herfindahl–Hirschman index increments and distantly placed competitors – market power might be enhanced. The CCI accepted that its concerns could be addressed by the divestiture of certain agrochemicals and associated undertakings not to re-enter the market or sell products in India.
In China National Agrochemical Corporation, the CCI identified a number of overlapping fungicide and pesticide markets where it had AAEC concerns, given the combined market shares, the position of the competitors and high entry barriers. The CCI accepted the parties’ proposal to divest the relevant products sold by the target in India. Depending on the product, the target would cease to be a competitor, or its market share would become negligible (zero to 5 per cent), or the combined market share would reduce to acceptable levels (from 30–40 per cent to 20–25 per cent).
Other cases have involved divestitures after the Phase II investigation process. In Sun/Ranbaxy, the CCI found that the merger of two pharmaceutical companies was likely to have an AAEC in respect of seven overlapping products. For each product, the merger would result in the elimination of a significant competitor and a corresponding reduction in significant competitors (from three to two, or from four to three). The CCI found that the merger would result in a near monopoly in two markets and in strengthening the combined entity’s market position in another. In considering a fitting remedy, the CCI stated that the aim of a modification was to maintain the existing level of competition in the market in India through: (1) creating a viable, independent and long-term competitor; and (2) ensuring that the approved purchaser had the necessary components, including transitional support arrangements, to compete effectively with the merged entity. Each party was therefore required to divest specified products.
In Holcim/Lafarge, the CCI considered that, taking into account unilateral and coordinated effects, the merger was likely to have an AAEC in the market for grey cement in the eastern region of India. In assessing unilateral effects, the CCI took account of the significant increase in the level of concentration, the absence of buyer power, the lack of significant constraints by competitors and significant entry barriers. In terms of coordinated effects, the CCI factored in the prevailing market structure, the oligopolistic nature of the industry, other factors (homogeneous product, small sale transactions and entry barriers) and the increase in CR4. It also noted that the industry was prone to collusion. It further considered and rejected efficiency arguments. The CCI considered that both unilateral and coordinated effects could be eliminated by divestiture. This involved ascertaining in some detail the extent of divestiture and determining the specific assets to be divested.
In Dow/DuPont, the CCI had AAEC concerns in relation to three products and sets of products.
First, in relation to a fungicide for grapes, the CCI found that the parties had market shares of 30–35 per cent and 5–10 per cent, that there was an increase in concentration in a moderately concentrated market, that competitors were distantly placed, that there were entry barriers (research, field trials and multiple approvals) and that small farmers had no countervailing power. The CCI found that a particular formulation that was being discontinued accounted for most of one party’s sales. It proposed that the parties that undertook the commercialisation of the product should cease and not recommence, and withdraw registration, cancel trademarks, and not sell or supply in India.
Second, in relation to research and development in crop protection products, the CCI considered that the proposed merger might adversely affect the Indian crop protection market since considerable R&D activity took place outside India and this might lessen the rate at which new products came to India. The CCI found that this concern would be addressed by a global divestiture offered to the European Commission. This is a rare case where the CCI has explicitly found that a remedy accepted elsewhere effectively addresses a concern of an AAEC in India.
Finally, in relation to a particular polyethylene product, the CCI had AAEC concerns given the parties’ quite high market shares of 10–15 per cent and 25–30 per cent, the increase in concentration in a moderately concentrated market and the distant placing of other competitors. As such, the CCI proposed the transfer of Dow’s business in the product in India to an independent and unconnected third party.
Agrium/PotashCorp involved the proposed amalgamation of two major fertiliser companies. Both of them supplied in India through a JV, Canpotex, in which they and a third party, Mosaic, had joint control. The CCI found that the reduction in shareholders from three to two would mean that each would be constrained by one rather than two shareholders. This would lead to a greater alignment of interests and incentives. The combination would thus lead to the strengthening of Canpotex and there would be an impact on competition dynamics.
PotashCorp also had minority shareholdings in three companies; in two of these, APC and SQM, it had joint control, and the CCI could not rule out the possibility that it had the ability to materially influence the policies of the third, ICL. The three companies would thus come under the joint control of or be materially influenced by Agrium and PotashCorp.
The CCI considered that the proposed combination would be likely to have an AAEC in the market for potash in India. Canpotex and the three companies had 45–50 per cent of the Indian potash market, with two other significant players having shares of 20–25 per cent. Any further increase in concentration in an already highly concentrated market could lead to adverse competitive effects. The combination would strengthen structural links between the parties with regard to the management and control of Canpotex. The CCI also considered that the proposed combination denied the market the opportunity to create situations where it could have benefited from the probable disintegration of the JV, thereby reinforcing the coordinated effects. The CCI also rejected arguments that Indian Potash Limited had significant buyer power and that Canpotex was a price taker.
The CCI considered that, if the parties divested PotashCorp’s shareholding in the three companies, it would create three independent competitors in the Indian market, which would be likely to have the ability and incentive to compete more aggressively for gaining market share in India. After some exchanges between the CCI and the parties, and a detour to the NCLAT (see above), the parties accepted divestiture of Potash’s shareholdings in the three companies. The case is remarkable as it involved the divestment of assets located entirely outside India.
In Bayer/Monsanto, the CCI had AAEC concerns in relation to: (1) non-selective herbicides; (2) the upstream market for licensing of Bt traits for cotton and parental lines or hybrids (including traits) for corn; (3) the downstream market for the commercialisation of Bt cotton seeds, hybrid rice seeds and hybrid millet seeds; and (4) various vegetable hybrid seeds. The CCI considered that these concerns would be addressed by a set of divestitures, requiring Bayer to divest its non-selective herbicides business, its global broad crop and crop seeds business (with certain carve-outs) and its entire global vegetable seeds business, and Monsanto to divest its indirect 26 per cent shareholding and rights in an Indian company, which would eliminate the parties’ overlap in the commercialisation of Bt cotton seeds, hybrid rice seeds and hybrid millet seeds.
In Linde/Praxair, the CCI found that the proposed combination of the two international gas companies would be likely to lead to an AAEC in a number of gas markets in India. Further to its Phase II review, it considered that these concerns would be eliminated by the divestment of certain plants and cylinder filling stations of the parties as well as of Linde India’s shareholding in a JV. AAEC concerns in relation to Helium were addressed by divestitures accepted by the European Commission.
In a recent case involving ZF Friedrichshafen’s indirect acquisition of a 100 per cent shareholding in WABCO Holdings Inc, the CCI found that the parties overlapped in the manufacture and sale of components forming part of brake and clutch systems used in light and heavy commercial vehicles.
In assessing the competition implications of the proposed transaction regarding brake and clutch systems in a show cause notice, the CCI found at first sight that the parties together constituted the substantial supply of brake and clutch components/systems for commercial vehicles in India. The proposed combination was likely to result in the integration of two competing brake and clutch component portfolios for commercial vehicles resulting in a strong systems player. This would likely result in a reduced degree of countervailing power of OEMs, high prices and barriers for new entrants.
Before the issuing of the show cause notice, the parties had offered behavioural remedies largely in the nature of a firewall in Brakes India – the JV through which the acquirer substantially conducted its Indian business – for a five-year period to avoid coordination with WABCO. The CCI considered that these were not sufficient to drop the inquiry. After issuance of the show cause notice, the acquirer offered modifications including the divestment of its shareholding in Brakes India, ring-fencing pending divestment and an undertaking that it would have no influence on Brakes India in the future. The CCI considered the proposed divestment to be a clean and efficient remedy sufficient and proportional to address the above concerns.
The PVR case was concerned with PVR’s proposed acquisition of the film exhibition business of DLF Utilities Limited. The CCI identified AAEC concerns in relation to South Delhi, Noida and Gurgaon, and in relation to cooperation and non-compete agreements between the parties.
For both Noida and Gurgaon, two cities adjacent to Delhi, the CCI found that there was a highly concentrated market with a significant increase in the level of concentration; there was no adequate competitive constraint by competitors; efficiencies were not combination-specific; and there was very limited incentive by the acquirer to innovate. There was thus a high likelihood of the parties being able to significantly and sustainably increase prices or profit margins. PVR offered commitments for each area to terminate an agreement with the seller for the development of a multiplex cinema. Concerns that imminent entries into the market would start to provide effective competition in only two or three years’ time were addressed by commitments not to expand for three years and not to acquire any direct or indirect ownership, influence or interest over the other party for five years.
In South Delhi, the CCI found that:
- there was a highly concentrated market with a significant increase in the level of concentration;
- the combination would result in the removal of a vigorous head-to-head competitor;
- there was no adequate competitive constraint by competitors;
- there was limited scope for new entry;
- efficiencies were not combination-specific;
- there was low countervailing buyer power; and
- there was very limited incentive by the acquirer to innovate.
There was thus a high likelihood of the parties being able to significantly and sustainably increase prices or profit margins. PVR offered a package of behavioural commitments including price caps to address these concerns, but these were rejected by a majority of the CCI, which considered that such remedies would not adequately replicate the outcomes of a competitive market and would be difficult to formulate, implement and monitor. The CCI then proposed that the parties should divest specified target assets in South Delhi. However, in an amendment, PVR proposed exclusion of a narrower range of assets from the scope of the agreement, which the CCI accepted would result in PVR having a lower market share post-combination and in a reduction in market concentration. PVR also agreed to a freeze on expansion for five years and not to acquire any direct or indirect influence, ownership or interest over the assets for five years. For its part, the seller agreed that the assets would continue to provide effective competition for five years.
Further, the CCI considered that a proposed cooperation agreement between the parties in relation to the management and operation of multiplex spaces in malls developed by the seller was not integral or necessary to the proposed combination. This might lead to exclusive dealing and create barriers to entry for competitors of PVR. Consequently, PVR undertook not to sign or execute the cooperation agreement.
Operation of companies as separate businesses
In China National Agrochemical Corporation, the CCI had concerns relating to the bundling of products, vertical integration, interoperability, restrictions in technology agreements and increasing the control of the parties in the supply chain. The CCI considered that these could enhance the market power of the combined entity to impede the local system and the innovation and ability of farmers and public sector research institutions to offer alternative integrated solutions. These concerns were addressed by an undertaking under which the parties’ Indian companies would operate as separate, independent and competitive businesses for seven years.
Behavioural remedies in Bayer/Monsanto
In Bayer/Monsanto, the CCI accepted a broad package of behavioural remedies to address a variety of concerns about horizontal overlaps, vertical foreclosure, innovation and portfolio effects.
In three markets, the CCI had horizontal concerns. In relation to the market for the licensing of herbicide-tolerant traits technology, the CCI saw Bayer as a significant global competitor to Monsanto; as Monsanto would no longer be threatened by Bayer’s innovation activities, it would have less incentive to innovate to protect its business. In relation to the market for the licensing of Bt traits for cotton seeds in India, the CCI noted the strong market position of Monsanto. Although Bayer was not actually present in the Indian market, the CCI considered that it was one of the competitors with the ability to effectively constrain Monsanto and also noted that entry barriers were significant. In relation to the market for the licensing of parental lines or hybrids for corn seeds, the CCI considered that the combination would result in the consolidation of two major players in terms of the strength of seed traits and trait stacks. To address these concerns, Bayer undertook, for seven years after closing, to follow a policy of broad-based, non-exclusive licensing of traits currently commercialised in India, or to be introduced there in the future, on a fair, reasonable and non-discriminatory (FRAND) basis with willing and eligible licensees.
The CCI also had concerns about portfolio effects since the parties were present in closely related markets. Concerns about bundling resulted in an undertaking from Bayer that the combined entity would not offer its clients, farmers, distribution channels and commercial partners bundled products that might potentially have the effect of excluding competitors. Bayer also undertook, for a seven-year period, to follow a policy of non-exclusive licensing on a FRAND basis of non-selective herbicides or their active ingredients in the case of launch of a trait in India restricting producers to use specific non-selective herbicides supplied only by the parties. Concerns that competitors might find it more difficult to get access to distribution channels were addressed by an undertaking that the combined entity would not directly or indirectly impose commercial dealings capable of creating exclusivity in the sales channel.
The CCI was also concerned about the possibility of the parties cornering the emerging digital farming space and effectively excluding its competitors. To address this concern, the combined entity would be required for a seven-year period to provide access through licences on FRAND terms to: (1) existing Indian agroclimatic data; (2) the combined entity’s digital farming platforms in India for supplying or selling agricultural inputs to agricultural producers; and (3) to subscriptions to the combined entity’s digital farming products and platforms commercialised in India. In addition, the combined entity would grant access to Indian agroclimatic data free of charge to government of India institutions to create a public good in India.
Finally, the CCI had concerns that the consolidation of the parties’ R&D activities in seeds and traits would reduce the rate of innovation at which new products were launched globally and in India and adversely affect the Indian seed market. It appears that these concerns were addressed by the general commitments on licensing traits on a FRAND basis, which would enable suppliers in India to innovate and launch new products for the benefit of farmers and produce effective competitive constraints on the combined entity.
Behavioural remedies in Schneider Electric
In Schneider Electric, the CCI cleared the proposed acquisition of the electrical and automation business of Larsen & Toubro on the basis of a package of behavioural remedies proposed by the acquirers. The CCI found that the proposed combination would be likely to result in an AAEC since:
- the transaction involved the consolidation of two prominent competitors, who were the first and second leading players in the market, and enjoyed inherent advantages over the other competitors, with the widest range of offerings in the market;
- the parties had high combined market shares in six markets where they overlapped;
- as the target was the most entrenched brand in India with maximum installations, there would be replacement costs where its offering was discontinued;
- the reach and portfolio of the combined entity would lock a larger part of the distribution network and other downstream players, with such vertical integration making entry difficult;
- new and existing competitors would not provide a competitive constraint; and
- with the massive size of the combined entity, the cost to rivals of competing and increasing their presence in the market would be much higher than before.
The CCI initially proposed to address this by means of divestments of the target’s business in six products. However, the acquirers argued that such divestments would be unviable and disproportionate. Citing practice in the European Union, the acquirers successfully argued for a package of solely behavioural remedies consisting of:
- white-labelling arrangements with third parties of five products of the target for a five-year period;
- the provision of a non-exclusive technology licence for a further five-year period to one of the third parties that had availed of the white-labelling;
- the amendment by Schneider Electric of its distributorship agreement and commercial policy to remove barriers encouraging de facto exclusivity;
- the adoption by Schneider Electric of a pricing mechanism under which the average selling price of the six high market share products would not exceed the target’s average net selling price for the preceding year; and
- commitments in relation to R&D, exports and non-rationalisation of the target’s products.
The CCI stated that the modifications proposed would give competitors the opportunity to strengthen their product portfolio and increase the viability of their own brand in a sustainable way without incurring significant capital investment costs. This would enable them to become as credible competitors as the target.
Access to infrastructure
In GSPC Distribution Networks, the CCI found there was no AAEC in markets for the transmission and distribution of natural gas in the state of Gujarat, largely because third-party access was regulated. The acquirer nonetheless told undertakings that it would review contracts to ensure compliance with the Act and sectoral legislation, and to submit a compliance report to the CCI.
In Mumbai International Airport, a number of oil public sector undertakings (PSUs) proposed to set up an aviation fuel farm facility in the airport. This raised concerns relating to access by non-PSU fuel suppliers and conflicts of interest on the part of the PSUs. The parties agreed to amend the shareholders agreement to enable non-PSUs to share in the ownership of the fuel farm in future, to set up a joint coordination committee to ensure that fuel suppliers were treated fairly and equitably, and to increase capacity up front. The CCI also considered that a number of safeguards in relation to the operation of the fuel farm – publication of key information on the website, a clause in the standard supply agreement on compliance with competition law, giving reasons for denying suppliers the right to supply, adequate monitoring mechanisms, and ensuring the facility operated ‘in complete consonance with principles of competition law and fairness’ – would enhance transparency and promote arm’s-length distance in operating the fuel farm.
In TRIL Urban Transport, the acquirer, part of the Tata Sons Group (Tata), proposed to acquire a minority shareholding in airport operator GMR Airports. Since Tata had majority holdings in two airlines, there were concerns of a conflict of interest, with the vertically integrated entity having the incentive to foreclose competing airlines. The CCI accepted a voluntary modification designed to alleviate any potential conflict of interest under which: (1) the acquirer would not appoint directors or key managerial persons in the airport operator subsidiaries of the target; (2) any acquirer director on the board of the target would recuse him or herself where there was any discussion of or voting on slot allocation; (3) the target would ensure that commercially sensitive information on slot allocation was not given to an acquirer director where this would result in the acquirer obtaining an undue commercial advantage; (4) directors on the board of the target could not also be directors in airline companies; (5) adequate monitoring mechanisms would be put into place; and (6) the airport operators would follow the principles of competition law including competition neutrality, level playing field and fairness.
In Nippon Yusen Kabushiki, which concerned the creation of a JV to carry on container line shipping and terminal services, the CCI expressed concerns about the possible spillover effectsin the parties’ retained businesses. These were addressed by a voluntary behavioural commitment to introduce a ‘rule of information control’ prohibiting exchanges of information on the non-integrated businesses and for disciplinary action in cases of breach.
In Northern TK Venture, where the proposed combination involved competing healthcare providers, a subsidiary of the acquirer had a JV with a third competitor. To alleviate concerns that the JV could be a platform for coordinated behaviour between the combined entity and the other competitor or JV itself, the acquirer made voluntary commitments ensuring that the combined entity and the JV would operate as separate, independent and competitive businesses. As well as a ‘rule of information control’ preventing information exchange, with sanctions for breach, there would be no common directors on the boards of the combined entity and the JV, and the directors would provide undertakings on the disclosure of commercially sensitive information.
Impact on consumers
In Dish TV/Videocon, which involved direct-to-home broadcasting services, concerns that customers would have to bear the costs of any technical alignment carried out by the new entity were allayed by a commitment that the combined entity would bear the costs of such alignment.
A similar approach was taken in Jio, in which Jio had acquired stakes in two companies providing cable TV and other services. The parties undertook there would be no technical realignment that would result in changes in equipment in customer premises. In the event of such technical alignment, the costs would be borne by the parties. The parties also undertook that, after the combination, the customers would be free to choose any type of service or bundle (broadband, cable TV and telephone) offered by the companies.
In 16 cases, the CCI accepted commitments in relation to non-compete provisions. In Orchid Chemicals, the CCI stated that a non-compete obligation had to be reasonable as regards duration and the business activities, geographical areas and persons subject to restraint. In a number of earlier cases, the CCI accepted commitments reducing the term of the non-compete obligation from eight, six or five years, to four years. In later cases, it accepted reductions from five (and in one case seven) years to three years. In the chemicals and pharmaceutical sectors, the CCI accepted commitments to limit the non-compete to products that were actually manufactured or under development. In Torrent Pharmaceuticals, the parties committed to carving out products that were not part of the transferred business from the scope of the non-compete and to delete a ‘catch-all’ clause. In terms of geographic scope, the CCI accepted commitments limiting the non-compete to territories in which the target operated.
In a number of cases involving private equity investment, the promoters of the target accepted non-compete obligations until either the acquirer or the promoter ceased to hold 10 per cent of the shares. The CCI accepted commitments to increase the level of shareholding as far as the acquirer was concerned to 10 per cent. In one case, the promoters were required not to take up any active executive role with another person even if not engaged in competing business with the target: the parties offered to limit this to cases where the other person competed with the target. In Black River Food 2, the parties agreed to delete a clause requiring the promoters to take all such actions within their control to ensure that the target company and its subsidiaries were the only entities that engaged in the production of a broad range of food and fast-moving consumer good products.
In July 2017, the CCI issued a guidance note on non-compete restrictions. This makes it clear that such restrictions will be ancillary to a combination and covered by a clearance order only where they are directly related to and necessary to the implementation of the combination. Where the restriction is not ancillary, this may be stated in the clearance order and the restriction may be dealt with under other provisions of the Act. There is therefore no longer any need for parties to amend non-compete obligations to get clearance.
Behavioural remedies in Hyundai and Kia
In Hyundai and Kia, the two OEMs each proposed to acquire small shareholdings in OLA, a ride-sharing company facilitating transportation services through an online platform, and in an affiliate of OLA, a start-up focusing on charging infrastructure services for electric vehicles. Along with these investments, strategic cooperation between the two OEMs and the target companies was envisaged. OLA operates in the radio taxi space in India and the two OEMs sought to address concerns that OLA drivers not driving Hyundai or Kia vehicles might be placed at a disadvantage. The two OEMs thus offered voluntary modifications that the proposed strategic cooperation between them and OLA would be on a non-exclusive basis. In addition, the algorithm/programme of OLA’s marketplace would not: (1) give preference to drivers based solely on the brand of the passenger vehicles manufactured by the two OEMS; or (2) discriminate against any driver based solely on the brand of vehicle manufactured by any other OEM. Hyundai and Kia clarified that, apart from this stipulation on OLA’s algorithm/programme, OLA’s existing business model with Ola Fleet Technologies (engaged in the business of operational car leasing to OLA drivers, including of Hyundai vehicles) would not be impacted.
Compliance with the above modification would fall on OLA. The CCI therefore directed the two OEMs to procure an affidavit from OLA that it would ensure compliance with the modification.
Implementing the remedy: the divestiture cases
In many of the divestiture cases, the CCI has set out in some detail the elements of the required divestiture. Although space does not permit a detailed examination of these elements, they may be briefly set out as follows.
- Identifying the divestment business: the necessary components of the business, including, in some cases, key personnel, are set out in the order.
- First divestiture period: the divestiture is, in principle, to take place with requisite CCI approvals in the first divestiture period. Typically, this period is six months from the date of clearance decision, though it was 18 months in Agrium/PotashCorp. The period is often treated as confidential in the order.
- Preservation of economic viability, marketability and competitiveness: measures are to be taken to ensure that the business to be divested is run as a viable business, that assets are not degraded, etc.
- Hold separate obligations: where the business to be divested is part of a broader business, the former is to be kept separate with the appointment of a hold separate manager. In the case of divestment of shares, the divesting shareholders are not to exercise voting rights or be involved in the business from the date of the CCI’s decision.
- Ring-fencing: confidential information is not to be shared between the parties and the divested business.
- Non-solicitation: there is a limitation on employment by the parties of key personnel transferred to divested business.
- Due diligence: the parties are to provide information to potential purchasers to allow them to undertake reasonable due diligence.
- Reporting: the parties are to keep the monitoring agency informed of the process and potential purchasers.
- No acquisition of influence: the parties are not to acquire direct or indirect influence over divestment business for a specified period after closing.
- Purchaser requirements: various purchaser requirements are set out to ensure that the purchaser will be an independent and viable player in the market.
- Approval of the sale and purchase agreement and of the purchaser: the CCI is to give approval to the purchaser and of the terms of the sale and purchase agreement. In all cases other than Sun/Pharma, the CCI has permitted the closing of the main transaction pending closing of the divestment.
- Monitoring agency: the CCI generally appoints an independent agency as a monitoring agency to supervise the carrying out of the modification.
- Second divestiture period: if the parties fail to divest in the first divestiture period, the CCI may direct the parties to divest alternative divestment products in a second divestiture period. This will be overseen by a divestment agency who will have the sole authority to sell at no minimum price.
- Duties and obligations of parties: the parties are generally required to cooperate with the monitoring agency and, if applicable, the divestment agency. The CCI may also request information from the parties reasonably necessary for the effective implementation of the order.
- Removal of difficulty/review clause. The CCI may, of its own motion, or based on a reasoned application filed by the parties, pass such order or directions as it feels fit, to address any unforeseen circumstances or difficulties in implementing the order.
The CCI has not, to date, identified any cases of non-compliance with modifications.
The Act and the Combination Regulations contain a number of provisions that address compliance with modifications in Phase I and Phase II.
Where the CCI approves a combination with modification, the CCI’s approval order shall specify the terms, conditions and time frame for all the actions required for giving effect to the combination. Where the parties fail to carry out the modification accepted by them within the stipulated time limit, the CCI shall issue appropriate directions.
The Act provides for penalties for non-compliance with orders or directions of the CCI. A person who fails without reasonable cause to comply with such orders or directions, including those issued under Section 31, may be fined up to 100,000 rupees per day of non-compliance, up to a maximum of 100 million rupees. If there is no compliance with the order or directions, or a failure to pay a fine, the person concerned is then punishable with up to three years’ imprisonment, or up to a 250 million-rupee fine, or both, by the Chief Metropolitan Magistrate, New Delhi. Compensation may also be sought by persons for loss of damage shown to have been suffered as a result of an enterprise violating directions issued by the CCI or contravening, without any reasonable ground, any decision or order of the CCI, or any condition or restriction subject to which any approval, sanction, direction or exemption in relation to any matter has been accorded, given, made or granted under the Act or delaying in carrying out such orders or directions of the CCI.
The CCI has also addressed compliance in specific orders. These, together with legal provisions specific to Phase II orders, are outlined below.
In a number of the earlier cases involving non-compete clauses, the parties were directed to give effect to the modification.
In other cases, the CCI has adopted a varied response: in Dish TV/Videocon and later in Jio, the parties were directed to file a compliance report annually for five years. In Mumbai International Airport, the parties were directed to give effect to the commitments. The CCI stated that the order would stand revoked in case of failure to comply. The same statement was made in Nippon Yusen Kabushiki and Northern TK Venture. More recently, in TRIL Urban Transport, the CCI directed the parties to submit a compliance report, along with an affidavit, within 60 days of receiving the order. In addition, the modification was to be prominently displayed on the websites of the acquirer and the target, with a link to the CCI order.
In Abbot Laboratories, approval was expressly given subject to the parties carrying out the modification. The parties were directed to inform the CCI as soon as the modification was carried out and the combination consummated. If there was any change in the modification, or it was not carried out, the parties were to inform the CCI so that it might reconsider its approval order.
The clearest statement was made in China National Agrochemical Corporation, where the CCI approved the proposed combination subject to compliance with the divestiture commitments and undertaking given in the remedy proposal and gave a detailed direction. In the case of failure to comply, the proposed combination would be deemed to have caused an AAEC in India.
In FMC, the order stated that the acquirer was to notify the CCI at least 30 days prior to any change in the corporate structure of the parties that might adversely affect their compliance.
In Hyundai and Kia, the CCI stated that the terms of the voluntary modification ‘shall be read purposively for the purpose its compliance [sic] as the Proposed Combination is approved subject to the modifications’. The CCI also reserved the right to pass such directions as might be necessary to address any unforeseen circumstances.
Section 31(5) of the Act addresses the case where the parties accept the modification proposed by the CCI without themselves submitting amendments; where the parties fail to carry out the modification within the period specified by the CCI, the combination will be deemed to have an AAEC and the CCI will deal with this in accordance with the Act. In Dow/DuPont, the CCI expressly approved the proposed combination subject to the parties carrying out the modification accepted unconditionally by them.
The Combination Regulations provide that, where the parties have accepted the modification proposed by the CCI under Section 31(3) of the Act, where the CCI agrees with the parties’ amendment under Section 31(7), or the parties accept the CCI’s modification under Section 31(8), the parties are to carry out the modification as per the terms and conditions and within the period specified by the CCI and submit an affidavit to that effect.
In both Sun/Ranbaxy and Holcim/Lafarge, the CCI approved the combination under Section 31(7) subject to the parties carrying out the modification to the combination. In PVR, approval under Section 31(7) was made subject to the parties complying with the commitments given in relation to Gurgaon and Noida, and carrying out the modifications accepted in relation to South Delhi. In Agrium/PotashCorp, the CCI approved the proposed combination under Section 31(7) subject to the parties carrying out the modification as approved by the NCLAT.
In Bayer/Monsanto, Linde/Praxair and later in ZF Friedrichshafen, the CCI stated that, if the parties failed to comply with the modifications, the Proposed Combination would be deemed to have caused an AAEC in India and the concerned parties would render themselves liable to being proceeded against under the relevant provisions of the Competition Act.
In Schneider Electric, the CCI stated that the remedial modifications were ‘to be interpreted purposively to give effect to the objectives of offering them’. Schneider Electric and its affiliates were not to make any commercial offer or engage in a dealing with respect to the LV switchgear products that had the effect of diluting the effect or objectives of the modifications. Apart from attracting proceedings for breach of the modifications, the person concerned could also be proceeded against under relevant provisions of the Act, including Section 4 (abuse of dominant position).
The CCI also required the filing by the acquirers of an annual report on compliance with the modifications, along with a narrative of how the remedies were working in the Indian market and a description of the state of play of competition in the market.
Finally, mention should be made of the vital role of independent agencies in overseeing modifications. As discussed above, provision is routinely made in the divestiture cases for the appointment of monitoring agencies and, where this becomes necessary, of divestment agencies. Such agencies are usually appointed by the CCI; exceptionally, in its February 2020 order in ZF Friedrichshafen, the CCI did not appoint a monitoring trustee to oversee the remedies, leaving the parties responsible for this exercise. Monitoring agencies have also been appointed to oversee behavioural commitments. For example, in Schneider Electric, the CCI stated that the behavioural remedies offered by the acquirers ‘contemplate monitoring of various aspects therein’ and the clearance order provided for the appointment of an independent agency as monitoring agency to supervise the modifications and ensure compliance by the acquirers.
Some general points may be made by way of a conclusion.
The CCI has shown that, rather than block a transaction with an AAEC, it will be prepared to go to significant lengths to consider remedies to secure clearance.
The CCI is prepared to avail of a broad range of structural and non-structural remedies, though, where there are significant horizontal overlaps, it has shown a clear preference for structural over behavioural remedies.
In addition, the CCI will tailor the remedies to the facts of each case and has rejected a one size fits all approach. It will engage in detailed discussions with the parties to ensure that the remedy eliminates the competitive harm it has identified.
As an active member of the International Competition Network, the CCI takes from and contributes to the best practices developed by that body. Although not specifically referred to, elements of the 2016 Merger Remedies Guide are clearly reflected in the clearance orders.
In dealing with the Indian element of global mergers, the CCI is actively engaging with other antitrust authorities to finalise the remedies acceptable in India. The CCI has developed good relationships with its counterparts in major jurisdictions such as the US and the EU and will draw inspiration from practice elsewhere. However, the CCI has shown that it will focus on competition effects in India and will not necessarily follow the approach to remedies taken elsewhere. It is also clear that where the Indian market is affected, the CCI will seek remedies in relation to assets outside India.
Intelligent planning by parties can help in getting remedies that they will be (at least relatively) happy with. Serious consideration needs to be given to offering proportionate modifications in Phase I, though parties may prefer to wait until the beginning of Phase II before revealing their hand. Any later, and the CCI may have a stronger hand. In any case, where a deal may raise AAEC concerns, the parties should think about remedies far in advance and have a viable ‘plan B’ ready to discuss with the CCI.
Finally, mention should be made of the July 2019 report of the Competition Law Review Committee, which was tasked to review and recommend a robust competition regime and suggest changes in the substantive and procedural aspects of competition law. This contained three recommendations in relation to remedies that may, in turn, lead to changes in the Act and in the Combination Regulations.
First, equal opportunities should be given to the CCI and the notifying parties to propose remedies at various stages of the review process. Second, market testing of proposed remedies should be robust and undertaken where required. Third, annual reports of companies subject to remedies could make disclosure on compliance with remedies.
Whatever changes may result from this exercise, it is certain that the law and practice on merger remedies in India will continue to evolve.
1 John Handoll is a senior adviser and Shweta Shroff Chopra and Aparna Mehra are partners at Shardul Amarchand Mangaldas & Co.
3 Cases C-2014/05/170 Sun/Ranbaxy (5 December 2014) (and see continuation order of 17 March 2015), C-2014/07/190 Holcim/Lafarge (30 March 2015) (and see supplementary order of 2 February 2016), C-2014/10/215 ZF Friedrichshafen (24 February 2015), C-2016/05/400 Dow/DuPont (8 June 2017), C-2016/08/418 Abbott Laboratories (13 December 2016), C-2016/08/424 China National Agrochemical Corporation (16 May 2017), C-2016/10/443 Agrium/PotashCorp (27 October 2017), C-2017/06/519 FMC (18 September 2017), C-2017/08/523 Bayer/Monsanto (14 June 2018), C-2018/01/545 Linde/Praxair (6 September 2018), and C-2019/11/703 ZF Friedrichshafen (14 February 2020).
4 Case C-2017/08/523 Bayer/Monsanto (footnote 3).
5 Case C-2018/07/586 Schneider Electric (18 April 2019).
6 Case C-2015/07/288 PVR (4 May 2016).
7 Cases C-2012/11/88 GSPC Distribution Networks (8 January 2013), C-2014/04/164 Mumbai International Airport (29 September 2014), Bayer/Monsanto (footnote 3) and C-2019/07/676 TRIL Urban Transport (1 October 2019).
8 Case C-2016/11/459 Nippon Yusen Kabushiki (29 June 2017) and C-2018/09/601 Northern TK Venture (29 October 2018).
9 Case C-2016/12/463 Dish TV/Videocon (4 May 2017) and C-2018/10/609, C-2018/10/610 Jio (21 January 2019).
10 Cases C-2012/09/79 Orchid Chemicals (21 December 2012), C-2013/04/116 Mylan (20 June 2013), C-2014/01/148 Torrent Pharmaceuticals (26 March 2014), C-2015/05/270 Advent International (12 June 2015), C-2015/06/286 TVS Logistics (29 July 2015), C-2015/07/288 PVR (footnote 6), C-2015/08/304 KKR Credit Advisers (8 December 2015), C-2015/12/356 Mandala Rose (28 March 2016), C-2016/01/368 Broad Street Investments (30 March 2016), C-2016/01/371 Black River Food 2 (13 May 2016), C-2016/02/373 Clariant Chemicals (11 May 2016), C-2016/03/387 LT Foods (11 May 2016), C-2016/06/407 HDFC (1 August 2016), C-2016/10/442 Aspen Global (13 January 2017), C-2016/10/444 HP (27 April 2017) and C-2016/11/453 CDPQ Private Equity (29 December 2016).
11 Case C-2019/09/682 Hyundai Motor Company and Kia Motors Corporation (30 October 2019).
12 See, for example, Holcim/Lafarge, Abbott Laboratories, Dow/Dupont, Agrium/PotashCorp, Bayer/Monsanto and Linde/Praxair (all footnote 3).
13 Footnote 3.
14 Footnote 3.
15 See, for a recent example, Schneider Electric (footnote 5).
16 Ministry of Corporate Affairs, notification dated 29 June 2017.
17 See Regulation 19(2) of the Combination Regulations.
18 Footnote 7.
19 Footnote 8.
20 Footnote 3.
21 Footnote 6.
22 Section 31(3) of the Act and Regulation 25(1) of the Combination Regulations.
23 Section 31(4) of the Act.
24 Section 31(5) of the Act.
25 Footnote 3.
26 Footnote 3.
27 Section 31(9) of the Act and Regulation 25(4) of the Combination Regulations.
28 Section 31(6) of the Act.
29 Section 31(7) of the Act and Regulation 25(3) of the Combination Regulations.
30 Footnote 3.
31 Footnote 3.
32 Footnote 6.
33 Footnote 3.
34 Footnote 5.
35 Section 31(8) of the Act.
36 Section 31(9) of the Act and Regulation 25(4) of the Combination Regulations.
37 Footnote 3.
38 Regulation 10(3) of the Combination Regulations.
39 Section 29(2) and (3) of the Competition Act.
40 Footnote 6.
41 Footnote 3.
42 Footnote 3.
43 Footnote 3.
44 Footnote 3.
45 Footnote 3.
46 Footnote 3.
47 Footnote 3.
48 Footnote 3.
49 Footnote 3.
50 Footnote 3.
51 Footnote 3.
52 Footnote 6.
53 For the position in relation to non-compete, see the subsection on non-compete provisions below.
54 Footnote 3.
55 Footnote 3.
56 Footnote 5.
57 M.8678 ABB/General Electric Industrial Solutions (1 June 2018) and M.3593 Apollo Group/Bakelite AG (11 April 2005).
58 Footnote 7.
59 Footnote 7.
60 Footnote 7.
61 Footnote 8.
62 Footnote 8.
63 Footnote 9.
64 Footnote 9.
65 Footnote 10.
66 Orchid Chemicals, Mylan and Torrent Pharmaceuticals (all footnote 10).
67 Advent International, TVS Logistics, PVR, Clariant Chemicals, Aspen Global and HP (all footnote 10).
68 Orchid Chemicals and Mylan (both footnote 10).
69 Footnote 10.
70 Broad Street Investments (footnote 10).
71 KKR Credit Advisors, Mandala Rose, Broad Street Investments and CDPG Private Equity (all footnote 10).
72 Broad Street Investments (footnote 10).
73 Footnote 10.
74 This is accessible from the Combinations section of the CCI website (footnote 2).
75 Footnote 11.
76 Sun/Ranbaxy, Holcim/Lafarge, Dow/DuPont, China National Agrochemical Corporation, Agrium/PotashCorp, FMC, Bayer/Monsanto and ZF Friedrichshafen (2020) (all footnote 3).
77 Footnote 3.
78 Footnote 3.
79 See Regulation 27 of the Combination Regulations for provisions on the appointment of independent agencies to oversee modification. This originally covered only modifications proposed by the CCI and accepted by the parties. Reflecting de facto practice, it was amended in October 2018 to cover all modifications.
80 See ZF Friedrichshafen (2020) (footnote 3).
81 Regulation 28(3) of the Combination Regulations.
82 Regulation 28(4) of the Combination Regulations.
83 Section 43 of the Act.
84 Section 42A of the Act.
85 Footnote 9
86 Footnote 9.
87 Footnote 7.
88 Footnote 8.
89 Footnote 7.
90 Footnote 3.
91 Footnote 3.
92 Footnote 3.
93 Footnote 11.
94 Footnote 3.
95 Regulation 25(1) of the Combination Regulations.
96 Footnote 3.
97 Footnote 6.
98 Footnote 3.
99 Footnote 3.
100 Footnote 3.
101 See ZF Friedrichshafen (2020) (footnote 3).
102 Footnote 5.
103 Footnote 3.
104 Footnote 5.
105 Exceptionally, the appointment of the monitoring agency in that case was made public in a notice dated 11 July 2019.
106 This was published on the website of the Ministry of the Corporate Affairs (http://mca.gov.in/Ministry/pdf/ReportCLRC_14082019.pdf).