India: Merger Control

Since the Indian merger control regime came into effect on 1 June 2011, over 700 notifications have been filed with the Competition Commission of India (CCI). The Indian regime is governed by the Competition Act, 2002 (as amended) (the Competition Act) and its associated regulations, such as the Competition Commission of India (Procedure in regard to the transaction of business relating to combination) Regulations, 2011 (as amended) (the Combination Regulations). ¹

Overview: legal framework

In order to ensure that mergers and acquisitions do not cause any ‘appreciable adverse effect on competition’ (AAEC) in India, acquisitions (of shares, control, voting rights or assets), mergers or amalgamations, where the assets and turnover of transacting parties exceed certain jurisdictional thresholds (combinations), need to be assessed by the CCI.

Mandatory and suspensory regime

The Indian merger control regime is mandatory and suspensory in nature. This means that combinations are notifiable unless they are able to avail any exemptions, and cannot be consummated, either entirely or in part, before an approval from the CCI has been obtained.

Types of transactions

The Indian regime covers acquisitions of control, shares, voting rights or assets as well as mergers and amalgamations that amount to a combination.

Obligation to notify

In a transaction structured as an acquisition, the obligation to notify a combination lies upon the acquirer, whereas in a merger or an amalgamation, the transacting parties are required to notify the combination jointly to the CCI.

Inter-connected transactions

The parties may be required to notify a series of transactions or inter-connected transactions, one or more of which may amount to a combination, through a single notice. In essence, steps of an interconnected transaction or a series of multiple transactions that may not be notifiable as standalone transactions will also have to be notified to the CCI and cannot be closed before obtaining the CCI’s approval.

Thresholds

All transactions, including foreign-to-foreign transactions that breach the thresholds under the Competition Act, are required to be notified to the CCI. Analysis of the thresholds consists of asset and turnover assessment, which is a three-pronged test, the first of which is based solely on the assets and turnover of the target, whereas the second and the third limbs are based on the assets and turnover of the parties and their group or groups, respectively.

De-minimis exemption/small target exemption

A combination is exempt from notification if the value of assets of the target in India does not exceed 3.5 billion rupees or the value of the turnover of the target does not exceed 10 billion rupees, respectively. This small target exemption is available pursuant to the notifications issued by the Ministry of Corporate Affairs (MCA) dated 4 March 2011, 4 March 2016 and 29 March 2017. At present, this exemption is available until 27 March 2022.

If the small target exemption is unavailable, the parties need to assess if their transaction falls under the categories of transactions listed under Schedule I of the Combination Regulations, which ordinarily are not required to be notified as they are presumed not to cause AAEC (Schedule I Exemptions). If none of the exemptions are available and the jurisdictional thresholds (the Parties Test and the Group Test as set out in the table below) are met, the CCI’s approval must be sought.

Jurisdictional thresholds

Under section 5 of the Competition Act, the jurisdictional thresholds comprise eight different threshold tests related to worldwide and domestic assets and turnover of the transacting parties (the Parties Test) and their groups (the Group Test).

Calculation of the thresholds

The values of the assets and turnover as provided in the consolidated financial statements of the relevant parties for the immediately preceding financial year are considered for the purposes of analysing the applicability of the jurisdictional thresholds and the small target exemption.

For the asset value, the book values of fixed and current assets are considered, including brand value, value of goodwill, value of copyright, patent, permitted use, collective mark, registered proprietor, registered user, homonymous geographical indication, geographical indications, design or layout-design or other similar commercial rights; and for the turnover value, the total turnover of the enterprise, including revenue from exports, net revenue from operations but excluding indirect taxes, other income not connected with operations, and intra-group sales (only sales made by and between Indian group entities are to be excluded while determining the Indian turnover) must be considered.

In asset acquisitions, business transfers and so on, the asset or turnover of only the true target (and not the seller) is to be considered when applying the small target exemption and the jurisdictional thresholds. ²

Joint ventures

The Competition Act does not expressly cover joint ventures. Joint ventures created through transfer of assets by one or more enterprises (also referred to as brownfield joint ventures) may be notifiable provided the jurisdictional thresholds are met.

Joint ventures formed afresh by capital contributions by one or more enterprises (also referred to as greenfield joint ventures) are generally exempted from the requirement to notify to the CCI.

While determining the applicability of the jurisdictional thresholds and the small target exemption for joint ventures, the values of only the relevant asset, being transferred by the parents, and the turnover generated from such relevant assets, need to be considered.

Exemptions

Transactions that meet the jurisdictional thresholds may avail certain exemptions under the Competition Act or the Combination Regulations.

Exemptions under Schedule I (Combination Regulations)

Exemption of minority acquisitions

Minority acquisitions of less than 25 per cent shares are exempt if they are made solely as an investment or in the acquirers’ ordinary course of business, with a caveat that such trans­actions do not result in the acquisition of ‘control’ or confer any special shareholder rights upon the acquirers. However, various orders passed by the CCI over the course of the past few years have limited the applicability of this exemption. One such interpretation that the CCI seems to be increasingly adopting is that where an acquirer and the target are engaged in competing businesses or where their businesses are vertically related, the acquisition ‘need not necessarily be termed as an acquisition made solely as an investment or in the ordinary course of business’.

In case of private equity transactions, while the parties may not be direct competitors, the private equity fund may have interest in portfolio companies that are in the same line of business or vertically linked with the target. The moot issue is whether a threshold should be adopted to avert private equity funds from having to notify every minority non-controlling acquisition in the same sector. In this regard, more clarity is required from the CCI for ascertaining the scope of application of this exemption.

Exemption for acquisition of additional shares or voting rights

In the event an acquirer or its group that already has 25 per cent shareholding in a target acquires additional shareholding not exceeding 50 per cent in the target, such acquisition of additional shares is exempt if the acquirer or its group does not acquire any control (sole or joint) over the target.

Similarly, acquisitions where the acquirer or its group holds 50 per cent in the target and acquires additional shares in the same without any transfer of joint to sole control are exempt.

Intra-group transactions

Acquisitions or mergers and amalgamations where the parties belong to the same group and the target is not jointly controlled by enterprises outside the same group, are exempt.

Other exemptions

A number of other transactions are also exempt, such as acquisition of shares due to bonus issue, stock splits, consolidation of face value, buy back or subscription to rights of issue of shares, that do not lead to control.

Exemptions under section 6 of the Competition Act

Share subscriptions or financing facilities, 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 exempt and need not be notified to the CCI.

Exemptions for certain banking companies and petroleum companies

The government (through the MCA) has provided blanket exemptions from the requirement to notify combinations to the CCI for the following three sectors:

• amalgamations of regional rural banks vide a notification issued under the Regional Rural Banks Act, 1976;
• reconstitution, transfer (whole or part) and amalgamation of nationalised banks vide a notification issued under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970; and
• acquisitions, mergers and amalgamations under the Petroleum Act, 1934 or the Oilfields (Regulation and Development) Act, 1948 that involve Central Public Sector enterprises and their wholly or partly owned subsidiaries.

Key concepts in merger control and recent developments

The concept of control under the Competition Act, 2002

The interpretation of the terms control and group form one of the cornerstones of the Indian merger control framework. This is on account of the fact that several of the exemptions under Schedule I (as discussed above) pivot around these terms. The CCI has analysed different degrees of control in competition law. The first degree of control identified by the CCI is that of ­material influence, which constitutes the lowest level of control and gives an enterprise the ability to influence the affairs and management of another enterprise. The second degree of control identified by the CCI is that of de facto control, which implies a situation where an enterprise holds less than the majority of the voting rights, but in practice controls more than half of the votes actually cast at a meeting. The third degree of control identified by the CCI amounts to de jure or ‘controlling interest, which exists where an entity has a shareholding conferring more than 50 per cent of the voting rights upon it. The CCI requires that the parties undertake a nuanced review of commercial realities to ascertain when the CCI’s approval is required. Moreover, given that the definition of group itself qualifies entities as group entities if control exits and the CCI seeks information on the business activities of the parties’ groups in a notification, the identification of group and group entities is of substantial relevance.

The CCI has also considered the acquisition of veto rights for the approval of business plans and annual operating plans or budgets; commencement of a new line of business or to set up operations in new cities; discontinuation of an existing business; appointment of key managerial personnel including key terms of employment; influencing material terms of employee benefit plans; and strategic business decisions, as acquisition of rights amounting to control under the Competition Act.

Trigger events and form of filing

Trigger events

Transactions are required to be notified to the CCI upon the occurrence of one of the following trigger events:

• In the case of acquisitions, the trigger to notifying the CCI is the execution of binding transaction documents or any other binding document that indicates an agreement to acquire control, shares, voting rights or assets. A subset of acquisitions are transactions involving takeover of listed companies pursuant to an open offer in terms of the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeover) Regulations, 2011 (as amended). In such cases, the public announcement made to the Securities and Exchange Board of India is considered as the ‘other document’ and is the trigger to notifying the CCI.
• In case of mergers or amalgamations (a court approved process in India), approval of the transaction by the board of directors of the respective parties is the trigger event.

Trigger for acquisitions, mergers, acquisitions of distressed assets

In relation to acquisitions of distressed assets under the Insolvency and Bankruptcy Code 2016 (Code), the CCI must be notified upon finalisation of the acquirer’s resolution plan.

Pursuant to the recent view of the National Company Law Appellate Tribunal (NCLAT) in its decision in Arcelormittal India Pvt Ltd v Abhijit Guhathakurta (Company Appeal (AT) (Insolvency) No. 524 of 2019), obtaining the approval of the CCI before a resolution plan is approved by the committee of creditors is directory in nature and not mandatory. However, parties must seek the CCI’s approval prior to the approval of the resolution plan by any of the National Company Law Tribunals to avoid gun-jumping penalties.

Form of filing

Parties can either file a short Form I (as amended) or a long Form II with the CCI. A Form III (post completion notification) is prescribed for certain exempt transactions.

If parties are competitors and hold a market share exceeding 15 per cent or if parties are vertically integrated and hold an individual or combined market share exceeding 25 per cent a Form II filing is recommended.

In October 2019, the CCI increased the fees for filing Form I from 1.5 million rupees to 2 million rupees, and for filing Form II from 5 million rupees to 6.5 million rupees. ³

Green Channel notification

In line with the government’s policy to improve the ease of doing business in India, the CCI, by way of a notification dated 13 August 2019, introduced the concept of a ‘Green Channel’ approval route under the Combination Regulations.

This will allow parties to file a simplified version of Form I and receive deemed approval of the transaction immediately upon notifying the same to the CCI. However, the Green Channel will apply to only those transactions where the acquirer (and the acquirer group) has no existing interests in companies:

• that may be seen as competitors to the target’s business;
• that operate in markets with vertical linkages to the target’s business; and
• that operate in markets with complementary linkages to the target’s business.

Deadline for filing and timeline for clearance

Phase I investigation and prima facie review

The CCI is required to form a prima facie opinion on whether a proposed combination would cause an AAEC within 30 working days of the parties notifying it.

In cases where the CCI reaches out to third parties for the assessment of the impact of a transaction, an additional 15 working days are available ot the CCI for the assessment to be completed.

If the CCI’s prima facie opinion is that the transaction does not or is not likely to cause an AAEC in India, then the CCI passes an order approving the proposed combination. This is loosely referred to as a Phase I investigation, whereby the CCI usually approves simple notifications within 30 working days, concluding that these transactions do not cause an AAEC in India.

Request for additional information and clock stops

The CCI may request additional information from the parties to the combination. The assessment clock stops while the parties respond to requests for information from the CCI and the time taken by the parties to respond is excluded from the 30 working day timeline.

Show cause notice (SCN) and response to SCN

If the CCI is of the opinion that there is likely to be an AAEC in the market, a notice is issued to the parties on why a detailed investigation to assess the proposed combination’s competitive effects should not be conducted. If the parties successfully address the CCI’s concerns in response to the SCN, which could include offering voluntary behavioural or structural remedies, then the CCI may approve the transaction. If the CCI’s concerns persist, it will commence a Phase II investigation.

Outer time limit

It may take up to 210 calendar days for the CCI to review and approve a proposed combination (Phase I or Phase II) from the date of filing of the notification excluding time taken by parties to respond to the CCI’s information requests. An additional 60 working days may be available to the CCI in certain circumstances.

Where the CCI has started a Phase II investigation, the parties to the proposed combination must publish certain information about the transaction for inviting comments from any person.

Invalidation

Invalidation of notice

The CCI, at its sole discretion, has the authority to invalidate any notification filed by parties if the notification is incomplete or not in compliance with the Combination Regulations. An opportunity to be heard prior to invalidation may be given by the CCI to the parties. Usually this power is exercised by the CCI in the event the notification provided to it is incomplete.

Withdraw and refile

Parties have the option of withdrawing and refiling a fresh merger notification. The filing fee already paid to the CCI is adjusted against the fee payable for the new notification, provided the new notification is given within three months from the date of withdrawal. The timeline for review of an invalidated notice will restart when the complete form is refiled with the CCI.

Global transactions

The parties to a global filing must ensure that they receive the CCI’s approval before the trans­action closes globally and in India. The trigger event for notifying global transactions could either be a country specific implementation agreement or the global agreement.

Carve outs and hold separate agreements are not permitted by the CCI unless parties establish that they continue to operate independently in Indian markets.

The Baxter/Baxalta ⁴ and Eli Lily/Novartis ⁵ cases give limited guidance on this issue. In these cases, the CCI observed that the parties’ independent behaviour had ceased after the transactions were completed globally despite the carve out of the Indian businesses.

Failure to notify and limitation

Gun-jumping

The maximum penalty for failure to notify a combination to the CCI is 1 per cent of the combined assets or turnover, whichever is higher, of the combining parties. The maximum penalty that the CCI has imposed till date, is 50 million rupees. ⁶

Power of the CCI to look back at effects of the transaction

The CCI can look back at the effects of a transaction that was not notified for a period of one year from the date of its completion based on its own information or knowledge of any transaction. There is no time limitation to the CCI’s power to penalise parties for a failure to notify it.

Orders of the CCI and remedies

So far the CCI has cleared eight Phase II investigations with modifications and approved trans­actions as part of protracted Phase I investigations where the parties voluntarily offered to divest certain assets.

Although the CCI prefers structural remedies over behavioural remedies, an analysis of the recent Phase II investigations by the CCI indicates that the CCI may accept structural or behavioural remedies or a combination of both to address AAEC concerns.

Factors considered by the CCI while assessing a combination

The CCI assesses various negative and positive factors to determine the AAEC impact of a combination in a market. The CCI specifically considers an assessment of AAEC in instances where the parties have horizontal or vertical overlaps and have substantial incremental market share in such overlapping markets.

Powers of the CCI – block transactions, remedies

The CCI has the power to block transactions:

• where the proposed combination is likely to cause an AAEC in India;
• where the parties to the proposed combination fail to carry out the modifications that they initially committed to, and such combination is deemed to have an AAEC in India due to non-implementation of the modifications; and
• where the parties fail to accept the modifications proposed by the CCI within 30 working days or within a further additional period of 30 working days and the proposed combination is deemed to have an AAEC in India.

Remedies

As discussed above, the CCI may approve combinations that are likely to cause AAEC subject to appropriate remedies. In the table below we have set out a few important cases where the CCI has granted its approval based on voluntary modifications suggested by the parties during the Phase I review period.

List of Phase I cases

In the table below we have set out the cases where the CCI has granted an approval based on modifications suggested by the CCI or the parties during the Phase II review period.

List of Phase II cases

Notes