I INTRODUCTION

The Indian merger control regime came into effect on 1 June 2011 with the notification of Sections 5 and 6 of the Competition Act, 2002 (Competition Act). The regime is governed by the Competition Act, notifications issued by the Ministry of Corporate Affairs, Government of India (MCA) and the Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Regulations, 2011, as amended up to 8 January 2016 (Combination Regulations).

Under the Indian merger control regime, a ‘combination’ (i.e., an acquisition, merger or amalgamation) must be notified to and approved by the Indian competition authority, the Competition Commission of India (CCI), if it breaches the prescribed asset and turnover thresholds and does not qualify for any exemptions. The requirement to notify the CCI is mandatory. Notifications must be made within a prescribed time period and are subject to a standstill or suspensory obligation. Where a combination causes or is likely to cause an appreciable adverse effect on competition (AAEC) within the relevant market in India, the combination is void. To date, the CCI has cleared more than 300 combinations, the vast majority within the 30-working day Phase I periods.2 To date, the CCI has cleared three combinations subject to remedies, but so far has never outright blocked a combination.

In this chapter we first outline the circumstances under which parties to a transaction are required to notify the CCI, then provide an overview of the factors taken into account by the CCI when determining whether a combination is likely to cause an AAEC, as well as a brief discussion of the recent trends in Indian merger control, including key amendments to the Combination Regulations.

II THE MERGER CONTROL REGIME

i The merger control regime – whether a notification is required
Applicable thresholds

A ‘combination’ is any acquisition, merger or amalgamation that meets certain asset or asset thresholds, under Section 5 of the Competition Act. The asset and turnover thresholds applicable to combinations comprise two tests, which are applicable to the immediate parties to the transaction and separately to the group to which the target or merged entity (as the case may be) will belong, and have both India and worldwide dimensions:

  • a The ‘parties test’ looks at the assets and turnover of the immediate parties to the transaction, that is, the acquirer and the target, or the merging parties, and a notification is triggered if the parties have any of the following:
  • • combined assets in India of 20 billion rupees;
  • • a combined turnover in India of 60 billion rupees;
  • • combined global assets of US$1 billion including combined assets in India of 10 billion rupees; or
  • • a combined global turnover of US$3 billion including combined turnover in India of 30 billion rupees.3
  • b Even if the parties’ test thresholds are not met, a notification may be triggered if the ‘group’ to which the parties would belong post-transaction has any of the following:
  • • assets in India of 80 billion rupees;
  • • a turnover in India of 240 billion rupees;
  • • global assets of US$4 billion including assets in India of 10 billion rupees; or
  • • a global turnover of US$12 billion including a turnover in India of 30 billion rupees.4
Exemptions

Every combination must mandatorily be notified to the CCI, unless the parties are able to take advantage of any of the exemptions provided in the Competition Act, the Combination Regulations or the Notification5 issued by the MCA. These exemptions are as follows:

  • a Statutory exemption – the requirement of mandatory notification prior to completion does not apply to any financing facility, acquisition or subscription of shares undertaken by foreign institutional investors, venture capital funds, public financial institutions and banks pursuant to a covenant of an investment agreement or a loan agreement.
  • b Categories of transactions usually exempt from mandatory notification – Schedule 1 of the Combination Regulations identifies certain categories of transactions that are ordinarily not likely to cause an AAEC in India, and need not normally be notified to the CCI. They are as follows:
  • • acquisition of shares or voting rights made solely as an investment or in the ordinary course of business, of less than 25 per cent of the total shares or voting rights of the target enterprise, and there is no acquisition of control of the target enterprise;6
  • • acquisition of additional shares or voting rights of an enterprise where the acquirer or its group, prior to the acquisition, already holds 25 per cent, but not 50 per cent, or more shares or voting rights are being acquired, and there is no acquisition of joint or sole control over the target enterprise by the acquirer or its group;
  • • acquisition of shares or voting rights by an acquirer who has 50 per cent or more of the shares or voting rights of the enterprise prior to the acquisition, except where the transaction results in a transfer from joint to sole control;
  • • acquisition of assets not directly related to the business activity of the party acquiring the asset or made solely as an investment or in the ordinary course of business, not leading to control of an enterprise, and not resulting in acquisition of substantial business operations in a particular location or for a particular product or service, irrespective of whether such assets are organised as a separate legal entity;
  • • amended or renewed tender offer, where a notice has been filed with the CCI prior to such amendment or renewal;
  • • acquisition of stock-in-trade, raw materials, stores and spares, trade receivables and other similar current assets in the ordinary course of business;
  • • acquisition of shares or voting rights pursuant to a bonus issue, stock split, consolidation, buy back or rights issue, not leading to acquisition of control;
  • • acquisition of shares or voting rights by a securities underwriter or a stockbroker on behalf of a client in the ordinary course of its business and in the process of underwriting or stockbroking;
  • • acquisition of control, shares, voting rights or assets by one person or enterprise, of another person or enterprise within the same group, except in cases where the acquired enterprise is jointly controlled by enterprises that are not part of the same group; and
  • • a merger or amalgamation involving two enterprises where one of the enterprises has more than 50 per cent of the shares or voting rights of the other enterprise, or a merger or amalgamation of enterprises in which more than 50 per cent of the shares or voting rights in each of such enterprises are held by enterprises within the same group, provided that the transaction does not result in a transfer from joint control to sole control; and
  • • acquisition of shares, control, voting rights or assets by a purchaser approved by the CCI pursuant to and in accordance with its order under Section 31 of the Competition Act.
  • c Target-based exemption (de minimis exemption) – transactions where the target enterprise either holds assets of less than 3.5 billion rupees in India, or generates turnover of less than 10 billion rupees in India, are currently exempt from the mandatory pre-notification requirement.7 The de minimis exemption is due to expire on 3 March 2021 and is applicable only to transactions structured as acquisitions (and does not apply to transactions structured as mergers or amalgamations).
‘Control’ as per the CCI

The acquisition of control or a shift from joint to sole control is an important determinant for whether exemptions relating to minority investments and intra-group reorganisations are applicable. Under the Competition Act, ‘control’ includes ‘controlling the affairs or management by (1) one or more enterprises, either jointly or singly, over another enterprise or group, (2) one or more groups, either jointly or singly, over another group or enterprise’.

The CCI has examined the issue of what constitutes ‘control’ in several cases. In SPE Mauritius/MSM Holdings,8 the CCI held that veto rights enjoyed by a minority shareholder over certain strategic commercial decisions might result in a situation of joint control over an enterprise. These rights include engaging in a new business or opening new locations or offices in other cities; appointment and termination of key managerial personnel (including material terms of their employment); and changing material terms of employee benefit plans. In Century Tokyo Leasing Corporation/Tata Capital Financial Services Limited,9 the CCI observed that veto rights could create a situation of control over when they pertain to approval of the business plan, approval of the annual operating plan (including budget), discontinuing any existing line or commencing a new line of business, and the appointment of key managerial personnel and their compensation. More recently, in Caladium Investments/Bandhan Financial Services,10 the CCI expanded the scope of such affirmative rights to include veto rights over amendments to charter documents, changes in capital structure, changes to dividend policy and appointment of auditors in the list of rights that could be seen as leading to joint control.

Interestingly, in the Jet/Etihad case,11 the CCI came to the conclusion that the acquisition of 24 per cent of the equity share capital of Jet Airways (Jet) by Etihad Airways (Etihad) allowed Etihad to exercise joint control over the assets and operations of Jet. The CCI determined that the terms of the agreements entered into between Jet and Etihad, along with a governance structure that allowed Etihad to appoint two out of six directors (including the vice-chair) on the board of directors of Jet, allowed Etihad to exercise ‘joint control’ over Jet. Notably, the Indian capital markets regulator, the Securities and Exchange Board of India (SEBI) differed on this issue, going on to say that under the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 2011 (Takeover Code), the definition of ‘control’ is narrower than that under the Competition Act and, therefore, that the acquisition does not grant ‘joint control’ of Jet to Etihad.

The CCI’s interpretation of ‘control’ resonates with the practice of its overseas counterparts like the European Commission (EC) and the US Federal Trade Commission (FTC) (particularly the former). Similar to the EC, the CCI has categorically taken the position that the ‘ability to exercise decisive control over the management and affairs’ of the target company amounts to control for the purposes of the Competition Act.12

Investors therefore need to keep in mind that even minority investments could be seen as an acquisition of control and trigger a notification if the thresholds in the Competition Act are met. This could extend to entirely innocuous financial investments. For instance, in Paris Cements Investment Holdings/Lafarge Cements,13 the acquisition of a minority interest of 14.03 per cent in Lafarge was notified to the CCI because of the veto rights granted to the acquirer.

Treatment of JVs

One of the common ways in which investors choose to do business in India is by way of joint ventures (JVs) with Indian counterparts. These joint ventures may be ‘greenfield’ (i.e., through the setting up of an entirely new enterprise or ‘brownfield’ (i.e., via an investment in an existing enterprise).

The Competition Act does not specifically deal with JVs from a merger control perspective. However, as setting up a greenfield JV or the entry of a new partner in a brownfield JV involves the acquisition of shares, voting rights or assets, such acquisition may require notification to the CCI, if the jurisdictional thresholds are met and are not otherwise eligible for any exemption.

A greenfield JV would involve the setting-up of a new enterprise, which by itself will not have sufficient assets or turnover to trigger a notification. However, where any of the parent companies to the JV transfer assets to the JV at the time of incorporation, a merger filing may be triggered on account of the anti-circumvention rule in Regulation 5(9) of the Combination Regulations. The anti-circumvention rule requires that if any assets are transferred to an enterprise for the purpose of the transferee enterprise entering into an acquisition, merger or amalgamation with any third person or enterprise, the value of the assets and turnover of the transferor enterprise shall also be attributed to the transferee enterprise for the purposes of the jurisdictional thresholds.

On the other hand, if there is no transfer of assets from any of the parties to a greenfield JV, given that it will have no assets or turnover at the time of incorporation, the process of setting up the greenfield JV is unlikely to require notification to the CCI, on account of the JV qualifying for the target-based de minimis exemption.

Interestingly, the Combination Regulations now contain a ‘substance test’ whereby the CCI can look beyond a transaction structure and assess whether the substance of the transaction would trigger a notification requirement to the CCI. In terms of implications for potential JV partners, if assets are transferred to a greenfield JV by any of the JV partners even after a significant period of time has passed after the incorporation of the JV, but such transfer is envisaged at the time the JV was set up, the CCI may apply the ‘substance test’ and conclude that the transaction requires notification since the ‘substance’ included the later asset transfer (which would trigger the anti-circumvention rule).

ii The merger control regime – relevant considerations to reviewing a combination
The ‘Appreciable Adverse Effect on Competition’ test

The Competition Act prohibits the entering into of any combination, which has or is likely to have an AAEC in the relevant market in India, and treats all such combinations as void.14

Consistent with practices in other jurisdictions, the CCI first determines the relevant market or relevant markets, and in that context considers the competitive effects of the combination. It then considers a number of non-exhaustive factors set out in the Competition Act to determine whether the combination is likely to cause an AAEC.

A relevant market is defined as the market, which may be determined with reference to the relevant product market or the relevant geographic market or with reference to both the markets.15

In turn, a relevant product market is defined as a market comprising all those products or services that are regarded as interchangeable or substitutable by the consumer, by reason of characteristics of the products or services, their prices and intended use.16 Notably, the CCI is only required to consider products or services that are interchangeable or substitutable by consumers. Therefore, the CCI is not required to consider supply-side substitutability in determining the relevant product market.

The relevant geographic market is a market comprising the area in which the conditions of competition for supply of goods or provision of services or demand of goods or services are distinctly homogenous and can be distinguished from the conditions prevailing in the neighbouring areas.17

The CCI has used economic tools such as the Elzinga-Hogarty test and chains of substitution18 in certain cases to determine the scope of the relevant market, but this is more the exception than the rule.

Upon determining the boundaries of the relevant market or markets, the CCI considers the competitive effects of the combination. The CCI is required to consider all or any of the following factors:

  • a actual and potential level of competition through imports in the market;
  • b extent of barriers to entry into the market;
  • c level of combination in the market;
  • d degree of countervailing power in the market;
  • e likelihood that the combination would result in the parties to the combination being able to significantly and sustainably increase prices or profit margins;
  • f extent of effective competition likely to sustain in a market;
  • g extent to which substitutes are available or are likely to be available in the market;
  • h market share, in the relevant market, of the persons or enterprise in a combination, individually and as a combination;
  • i likelihood that the combination would result in the removal of a vigorous and effective competitor or competitors in the market;
  • j nature and extent of vertical integration in the market;
  • k possibility of a failing business;
  • l nature and extent of innovation;
  • m relative advantage, by way of the contribution to the economic development, by any combination having or likely to have an AAEC; and
  • n whether the benefits of the combination outweigh the adverse impact of the combination, if any.

In the approximately 300 cases that the CCI has reviewed so far, it has typically considered factors such as the parties’ and competitors’ market shares, market concentration levels post-combination, the number of competitors remaining post-combination, barriers to entry, extent of growth in the market and countervailing buyer power to determine whether the combination being considered is likely to cause an AAEC. However, unlike more mature jurisdictions, so far the CCI has stopped short of expressly identifying an economic theory of harm to the parties or in its orders. A recent decision is illustrative. With respect to the acquisition by PVR Limited (PVR) of the film exhibition business of DLF Utilities Limited (DT), the CCI expressly considered that post-combination market shares and increments, the lack of efficiencies, the likelihood that the combination would result in the parties being able to significantly and sustainably increase prices or profit margins, and the lack of incentives to innovate further as sufficient grounds to determine there would be an absence of effective competitors and, therefore, the combination of PVR and DT would be likely to have an AAEC.19

The CCI’s analysis has focused on whether a combination is likely to cause an AAEC in India, even in cases where parties may have proposed global markets, or where markets are import-driven.

Merger remedies

An interesting development in the Indian merger control regime has been the perceptible shift in the CCI’s initial ‘soft attitude’ in clearing mergers. Initially the CCI did not use its powers to direct modifications to the terms of transactions or impose commitments to ensure compliance with the provisions of the Competition Act. Recently, the CCI has formally approved three different combinations subject to modifications in the form of structural commitments, even though there are no formal guidelines on merger remedies as yet.

Voluntary commitments offered by parties during Phase I investigations

In several cases, the CCI has granted approval after parties voluntarily amended the terms of non-compete clauses. In Elder Pharmaceutical/Torrent Pharmaceuticals,20 the CCI approved the transaction after the parties agreed to modify the scope of a non-compete clause in the agreement and reduce its scope from five to four years. Similarly, in Agila Specialities/Mylan Inc,21 the CCI approved the transaction only after the parties undertook to reduce the term of the non-compete clause. More recently, in Tata Capital/TVS Logistics,22 the CCI asked the parties to reduce the duration of the non-compete agreement from five years to three years before it cleared the transaction. It should be noted that the modifications in each of the above cases were volunteered by the parties themselves, in Phase I, rather than being initiated by the CCI.23

Modifications directed by the CCI pursuant to Phase II investigations

Most recently, in Sun/Ranbaxy,24 Holcim/Lafarge25 and PVR Cinemas/DT,26 the CCI approved the transactions on the condition that certain assets of the parties involved in these transactions would be divested to third parties to prevent AAEC in the relevant markets identified. Interestingly, the CCI recently issued a revised divestment order in Holcim/Lafarge after the original divestment process ran into regulatory hurdles.27

Merger filing time frames

A notification must be filed with the CCI within 30 calendar days of entering into the binding ‘trigger’ event, which may be:

  • a the final approval of the merger or amalgamation by the board of directors of the enterprises concerned; or
  • b the execution of any agreement or other document for the acquisition of shares, voting rights, assets or control.

The term ‘other document’ has been defined as being any binding document, by whatever name, conveying an agreement or decision to acquire control, shares, voting rights or assets, and includes any document executed by the acquirer conveying the decision to acquire, in the case of hostile acquisitions. Interestingly, the CCI has introduced a third category of trigger event, which is the public announcement (PA) under the Takeover Code made by parties for the acquisition of shares, voting rights or control over a listed enterprise. After much debate, the PA has now been specifically identified in the Combination Regulations as being a trigger document. The Combination Regulations previously considered any communication of the intention to acquire, by the acquiring enterprise, to the government or any statutory authority (such as SEBI, the Foreign Investment and Promotion Board or the Reserve Bank of India) to be a trigger event. Given the ambiguity of this provision, the CCI has now brought in more clarity by identifying PAs as a specific form of communication to SEBI, a statutory authority, as a trigger document.

Further, the CCI has now made it mandatory for parties to file a single notification for ‘interconnected’ transactions, one or more of which may be a combination. What constitutes ‘interconnected’ is somewhat vague, and is essentially determined by the CCI on a case-by-case basis. Interconnected transactions do not need to have any causal link or interdependence. Moreover, there is no time limit under the Competition Act or the Combination Regulations within which the CCI would consider transactions to be inter-connected (unlike in the EU), though the CCI does not consider transactions notifiable prior to 1 June 2011, the date on which the Indian merger control provisions came into force.

Parties have the option of notifying the CCI in either Form I, which is the default short-form notification, or in Form II, the more detailed long-form notification, where the parties have a horizontal overlap of over 15 per cent or a vertical overlap of over 25 per cent. In its recent round of amendments to the Combination Regulations, the CCI has overhauled the format of Form I, streamlining it and introducing accompanying guidance notes to assist parties in filing Form I.

Once notified, the CCI is bound to issue its prima facie opinion within 30 working days of filing, not accounting for ‘clock stops’, namely, when the CCI asks for additional information or directs parties to correct defects in their submissions. However, the CCI is also bound to issue its final order within 210 calendar days, even though the Combination Regulations provide that the CCI will ‘endeavour’ to pass relevant orders or directions within 180 days. In practice, the CCI has cleared the vast majority of all transactions within 30 days (excluding ‘clock stops’), thus giving positive signals to the business community.

Invalidation of notifications

The CCI has enhanced powers to invalidate a notification within the 30-working-day review period in three circumstances:

  • a if it is not in accordance with the Combination Regulations;
  • b if there is any change in the information submitted in the notification, which affects the competitive assessment of the CCI; and
  • c if the transaction was notified in Form I, but the CCI is of the view that the transaction ought to have been notified in Form II (in this case, the CCI returns the Form I notification and directs parties to refile in Form II).

While the CCI has the discretion to grant notifying parties a hearing before it determines to invalidate a notification, it is not mandatory for the CCI to do so. Further, the time taken by the CCI to arrive at such decision is excluded from the review clock.

The CCI appears to have used this power for invalidation in a highly technical fashion. In BNP Paribas/Sharekhan, 28 the CCI invalidated a notification on the technical ground that the individual who signed the notification on behalf of the notifying party was not properly authorised to do so. In GE/Alstom,29 the CCI directed the parties to refile the notification entirely in Form II (even for markets where there was insignificant overlap), as they had provided more detailed Form II level information only where overlaps were in excess of the market-share thresholds prescribed under the Combination Regulations.

Penalties for delayed filings or failure to file

Failure to file within 30 calendar days of the trigger event allows the CCI to impose a penalty of up to 1 per cent of the assets or turnover of the combination, whichever is higher. The maximum penalty imposed to date is 50 million rupees each in Piramal Enterprises/Shriram30 and GE/Alstom31 – both penalties were much lower than the statutory upper limit.

Confidentiality of submitted information

Confidential information and documents contained in merger filings and subsequent submissions are not automatically granted confidential treatment by the CCI. The notifying parties are required to specifically identify such information and make a request for confidential treatment for an identified time period. The CCI usually grants confidential treatment only over commercially sensitive or price-sensitive information or business secrets, the disclosure of which would cause commercial harm to the notifying parties and typically for not more than three years. However, it should be noted that the CCI, being a statutory body, is subject to the (Indian) Right to Information Act, 2005 (RTI Act), through which citizens can secure access to information in control of public authorities. While, legally, the CCI is required to provide access to citizens, confidential information provided by parties falls within an exemption under the RTI Act and it is therefore likely that these inbuilt safeguards in the RTI Act, coupled with the CCI’s own confidentiality regime, will be sufficient to assuage industry concerns in this regard.

Anti-circumvention and the introduction of the ‘substance test’

As previously mentioned, the CCI assesses the notification requirement with respect to the substance of the transaction, and any transactional structure that avoids notification in respect of the whole or a part of the combination shall be disregarded. In Google/Johnson & Johnson,32 the CCI determined that the formation of a robotics joint venture between the parties in the United States was notifiable in India because the transfer of certain intellectual property to the joint venture triggered the anti-circumvention rule, even though the JV itself would not have any activities in India.

Judicial review of mergers and the appellate process

Decisions of the CCI may be challenged before the Competition Appellate Tribunal (COMPAT), and a further appeal from any order of the COMPAT lies to the Supreme Court of India.

In a decision that is likely to have wide-ranging implications, the COMPAT stayed the operation of the revised divestment order of the CCI in Holcim/Lafarge upon the application of a prospective bidder for the divested assets.33

Other COMPAT decisions in the context of merger reviews include the challenge in the case of the CCI’s order in Jet/Etihad,34 which allowed Etihad to acquire a certain percentage of the equity share capital of Jet. The complainant alleged that the CCI allowed the combination without correctly appreciating the facts of the case or carrying out a detailed assessment. The COMPAT, however, dismissed the matter, ruling that the complainant was not an ‘aggrieved party’ within the meaning of the Competition Act and hence had no locus standi to challenge the order of the CCI.35 Notably, the COMPAT has recently overturned the penalty imposed by the CCI on Thomas Cook for alleged gun-jumping36.

III YEAR IN REVIEW

The past year has seen the CCI increasingly assert itself in relation to both procedural and substantive matters relating to merger reviews. Up until 31 March 2016, the CCI cleared more than 300 combinations in various industries such as aviation, manufacturing, information technology, financial services, banking and broadcasting. Notably, in the last year, the CCI cleared two transactions subject to modifications (Holcim/Lafarge37 and PVR Cinemas/DT38) and passed a number of orders where it penalised parties for gun-jumping or belated notification (Google/Johnson & Johnson;39 GE/Alstom;40 Piramal/Shriram Capital41).

The landscape of the Indian merger control regime is shifting rapidly due to the frequent amendments to the Combination Regulations. Over the past year alone, the CCI introduced two sets of amendments to the Combinations Regulations, and the MCA passed notifications that extended the scope of the de minimis exemption and increased the value of the jurisdictional thresholds under the Competition Act. The key amendments introduced in the past year are summarised below:

  • a expanding the CCI’s powers to invalidate a notice for not being accordance with the Combination Regulations. The CCI is not mandatorily required to allow the notifying parties a hearing, but may do so at its discretion;
  • b extending the Phase I review period from 30 calendar days to 30 working days. Moreover, the review process may further be extended by an additional period of 15 working days, in cases where the CCI seeks views from third parties;
  • c modifying Regulation 9(4) such that the erstwhile optional facility to file a composite notice in respect of interconnected transactions is now mandatory;
  • d allowing any person duly authorised by the company to now sign the notification on behalf of the notifying party, which is an important and practical procedural relaxation;
  • e extensive changes to the Form I format, which were accompanied by guidance notes to assist parties in preparation of notifications;
  • f introduction of PAs under the Takeover Code as a trigger document, replacing the erstwhile, more ambiguous ‘communication to a statutory authority of an intent to acquire’;
  • g revised guidance notes relating to its pre-filing consultation process on its website, clarifying the nature of requests that could be made (both substantive and interpretational), and the time period and format in which such requests should be made;42 and
  • h providing crucial guidance on the scope of the Item 1 exemption under Schedule I of the Combination Regulations, by clarifying the term ‘solely as an investment’.43

In addition to the amendments to the Combination Regulations, the MCA also issued three notifications on 4 March 2016, which increased, by 100 per cent, the value of the jurisdictional asset or turnover thresholds under Section 5 of the Competition Act and extended the applicability of the de minimis exemption by another five years, along with an increase in the value of the relevant monetary thresholds for the de minimis exemption.

IV OTHER STRATEGIC CONSIDERATIONS

Since the coming into force of the Indian merger control regime, the CCI has entered into cooperation agreements and memoranda of understanding with several of its overseas counterparts, including the FTC, the EC, the Australian Competition and Consumer Commission and the Russian Federal Anti-Monopoly Service. Through such agreements, the CCI has sought to strengthen international cooperation and share information related to fair trade practices. The CCI has demonstrated its intention to reach out to and coordinate with global regulators in the recent past, especially in multijurisdictional filings.

V OUTLOOK and CONCLUSIONS

The CCI has proved itself to be a proactive regulator with a willingness to adapt its processes to best practices and apply lessons learned in more mature merger control jurisdictions. Although the Indian merger control regime remains relatively new, the CCI’s evolution over the past year shows a propensity for continuous development, in keeping with an overall objective to facilitate the concerns of notifying parties while asserting its role in developing competition law jurisprudence.

Footnotes

1 Samir R Gandhi is a partner, Fadi Metanios is a senior consultant and Rahul Satyan and Shruti Aji Murali are senior associates at AZB & Partners.

2 As of 31 March 2016, the CCI has cleared 301 mergers, 280 of which were notified in Form I and 21 of which were notified in Form II.

3 Sections 5(a)(i), Section 5(b)(i) and Section 5(c)(i) of the Competition Act, read with the notification SO 675(E) dated 4 March 2016 issued by the MCA.

4 Section 5(a)(ii), Section 5(b)(ii) and Section 5(c)(ii) of the Competition Act, read with the notification SO 675(E) dated 4 March 2016 issued by the MCA.

5 Government of India Notification dated 4 March 2016, SO 674(E).

6 Explanation to Schedule 1(I):

The acquisition of less than ten per cent of the total shares or voting rights of an enterprise shall be treated as solely as an investment:

Provided that in relation to the said acquisition,-

(A) the Acquirer has ability to exercise only such rights that are exercisable by the ordinary shareholders of the enterprise whose shares or voting rights are being acquired to the extent of their respective shareholding; and

(B) the Acquirer is not a member of the board of directors of the enterprise whose shares or voting rights are being acquired and does not have a right or intention to nominate a director on the board of directors of the enterprise whose shares or voting rights are being acquired and does not intend to participate in the affairs or management of the enterprise whose shares or voting rights are being acquired.

7 Ibid.

8 C-2012/06/63, dated 9 August 2012.

9 C-2012/09/78, dated 4 October 2012.

10 C-2015/01/243, dated 5 March 2015.

11 C-2013/05/122, dated 12 November 2013.

12 Independent Media Trust, C – 2012/03/47, dated 28 May 2012.

13 C-2013/06/125, dated 26 June 2013.

14 Section 6(1) of the Competition Act.

15 Section 2(r) of the Competition Act.

16 Section 2(t) of the Competition Act.

17 Section 2(s) of the Competition Act.

18 Holcim/Lafarge, C-2014/07/190, dated 30 March 2015.

19 C-2015/07/288, dated 4 May 2016. At paragraphs 69 to 76. Ultimately the combination was approved, subject to modifications.

20 C-2014/01/148, dated 26 March 2014.

21 C-2013/04/116, dated 20 June 2013.

22 C-2015/06/286, dated 29 July 2015.

23 Regulation 19(3) of the Combination Regulations.

24 C-2014/05/170.

25 C-2014/07/190, order dated 30 March 2016.

26 C-2015/07/288, dated 4 May 2016.

27 C-2014/07/190, order dated 7 April 2016.

28 C-2015/12/354, dated 22 December 2015.

29 C-2015/01/241, dated 5 May 2015.

30 C-2015/02/249, penalty order dated 26 May 2015.

31 C-2015/01/241, penalty order dated 16 February 2016.

32 C-2015/06/283, dated 10 July 2015.

33 Appeal No. 26 of 2016, order dated 13 April 2016.

34 C-2013/05/122, dated 12 November 2013.

35 Appeal No. 44 of 2013, dated 27 March 2014.

36 Appeal no. 48 of 2014, order dated 26 August 2015.

37 C-2014/07/190.

38 C-2015/07/288.

39 C-2015/06/283, dated 10 July 2015.

40 C-2015/01/241, penalty order dated 16 February 2016.

41 C-2015/02/249, penalty order dated 26 May 2015.

42 However, the guidance provided under the pre-filing consultation facility remains non-binding and verbal.

43 Note 7, supra.