Merger Control 2020 - Laws and Regulations - India - ICLG PDF

16/04/2020 Merger Control 2020 | Laws and Regulations | India | ICLG
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Contributors India: Merger Control 2020
The ICLG to: Merger Control Laws and Regulations - India covers common issues in merger control laws and
regulations – including relevant authorities and legislation, noti cation and its impact on the transaction
timetable, remedies, appeals and enforcement and substantive assessment – in 55 jurisdictions.
Published: 17/12/2019
ICLG.com > Practice Areas > Merger Control > India
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1. Relevant Authorities and Legislation G.R. B
L&L Pa
2. Transactions Caught by Merger Control Legislation O ces
3. Noti cation and its Impact on the Transaction Timetable
Substantive Assessment of the Merger and Outcome of the
Kanika
4. Process
Nayar
5. The End of the Process: Remedies, Appeals and Enforcement L&L Pa

O ces
6. Miscellaneous
7. Is Merger Control Fit for Digital Services and Products?
1. Relevant Authorities and Legislation
1.1 Who is/are the relevant merger authority(ies)?
The relevant authority for looking into mergers, acquisitions and amalgamations (collectively, Combinations) in terms
of the Competition Act, 2002 (Act) is the Competition Commission of India (CCI). L&L Partners Law O ces

1.2 What is the merger legislation?

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The relevant merger legislation for combinations in India is the Competition Act, 2002. Along with the Act, the Buy Print Edition
Competition Commission of India (procedure in regard to the transaction of business relating to combinations)
Regulations, 2011 (Combination Regulations) governs the procedures relating to combinations. Buy Chapter PDF
1.3 Is there any other relevant legislation for foreign mergers?
The Act is the relevant legislation for regulating all combinations including noti able foreign mergers in India. The CCI
Other India Chapte
can examine foreign mergers which breach the threshold limits prescribed under the Act.
Anti Money Laundering
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1.4 Is there any other relevant legislation for mergers in particular sectors? Aviation Law
https://iclg.com/practice-areas/merger-control-laws-and-regulations/india 1/16
A few legislations which regulate mergers/acquisitions other than the Act are: the Companies Act, 2013; the Reserve Business Crime
Bank of India Act, 1934; Telecom Regulatory Authority of India Act, 1997; Electricity Act, 2003; Foreign Exchange and Cartels & Leniency
Management Act, 1999; Insurance Regulatory and Development Authority of India Act, 1999; and Securities and Class and Group Actions
Exchange Board of India
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Construction & Engineering
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2. Transactions Caught by Merger Control Legislation
Corporate Governance
Corporate Investigations
2.1 Which types of transaction are caught – in particular, what constitutes a “merger” and how is the concept of Corporate Recovery & Insolv
“control” de ned?
Cybersecurity
Data Protection
While the Act does not de ne mergers per se, a merger is when two or more entities combine into one; the effect being
Digital Health
not just the accumulation of assets and liabilities of the distinct entities, but organisation of such entities into one
Employment & Labour Law
business and a single corporate identity. Apart from the same, other transactions covered under the Act are
Environment & Climate Chan
acquisitions and amalgamations.
Fintech
Foreign Direct Investment R

As per Section 5 of the Act, ‘control’ includes the control of affairs or management by: (i) one or more enterprises,
Franchise
either jointly or singly, over another enterprise or group; or (ii) one or more groups, either jointly or singly, over another
group or enterprise. Control, as de ned under the Act, refers to sole as well as joint control. Sole control exists when Gambling
only one entity or group exercises control over the target enterprise. Joint control is deemed to exist in a situation Insurance & Reinsurance
where two or more enterprises or groups exercise decisive material in uence over the affairs or management of the International Arbitration
target. The CCI has used the yardstick of ability to exercise ‘decisive in uence’ over an enterprise in some cases and Investor-State Arbitration
ability to exercise ‘material in uence’ over an enterprise while determining existence of control. Mergers & Acquisitions
Outsourcing
Further, while imposing a penalty in Piramal/Shriram, the CCI observed that as matters, for which consent of the Patents
Acquirer was required, that included strategic commercial decisions and not merely minority protection rights, the Pharmaceutical Advertising
same amounted to joint control. Private Client
Private Equity
Control has been interpreted in several merger control orders decided by the CCI:
Product Liability
Project Finance
In Century Leasing/Tata Capital, the CCI held that a rmative rights with respect to approval of business plan,
commencing a new line of business, discontinuing any existing line of activity and any strategic business Real Estate
decisions envisages control. Sanctions
In Alpha/Tata Capital, the CCI held that a rmative rights for which consent of the acquirer is required include
Securitisation
strategic commercial decisions of the company and, thus cannot be considered as mere minority protection
rights but re ect acquirer’s control over the company. Shipping
In Jet/Etihad, the CCI held that the right to nominate two out of six shareholder directors (including the Vice Telecoms, Media & Internet
Chairman), its acquisition of 24% equity stake and its right to recommend candidates for senior management
constituted as Etihad’s ability to participate in the managerial affairs of Jet and constituted control. Trade Marks
In MSM/SPE, the CCI held that “joint control over an enterprise implies control over the strategic commercial Vertical Agreements and Do
operations of the enterprise by two or more persons. Each of the persons in joint control would have the right to
veto / block the strategic commercial decisions which could result in a deadlock situation. Joint control over an
enterprise may arise as a result of shareholding or through contractual arrangements between the
shareholders”.
In Standard Life/HDFC, the CCI held that the right to approve or amend any business plan, dispose of or dilute its
interest in any of its subsidiaries and approve any renumeration of full-time directors and managers/CEO,
constitutes control.
2.2 Can the acquisition of a minority shareholding amount to a “merger”?
Combination Regulations (Item 1 of Schedule I) exempts acquirers from notifying if the acquisition of shares or voting
rights: (i) does not entitle the acquirer to hold 25% or more shares in a target company; (ii) takes place “solely as an
investment” or “in the ordinary course of business”; and (iii) does not result in the acquisition of control over the target
company.
However, where the acquirer acquires minority shareholding but has a rmative voting rights/veto rights, they may be
deemed to be acquiring control in light of the CCI’s precedents. The explanation to the Item 1 of Schedule I of the
Combination Regulations clari es that the acquisition of less than 10% of the total shares or voting rights of an
enterprise qualify “solely
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the acquirer can exercise only such rights as 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
the acquirer must not be a member of the board of directors of the enterprise whose shares or voting rights are
being acquired, 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.
Therefore, even the acquisition of a minority shareholding could amount to ‘control’ and thereby a case of ‘merger’
under the Act if the above conditions are not met.
2.3 Are joint ventures subject to merger control?
As a ‘green eld’ joint venture only involves the establishment of a new company which is used to build operations from
the group up, it does not ordinarily meet the jurisdictional thresholds and is exempted under the de minimis exemption.
A ‘brown eld’ joint venture entails transfer of pre-established assets/divisions and to the extent that the jurisdictional
thresholds are met, require noti cation.
2.4 What are the jurisdictional thresholds for application of merger control?
Before looking at jurisdictional thresholds prescribed under the Act, the test laid down to qualify the assets to be
considered needs to be set out. In an acquisition for calculating thresholds, the value of assets and turnover of the
acquirer or of the group to which the acquirer belongs, as well as the target being acquired, are considered. The ‘size of
the business’ test adopted by the Ministry of Corporate Affairs vide its noti cation of March 29, 2017, mandates that in
cases where a portion of an enterprise or division or business is being acquired, the value of assets and turnover of
such portion or division or business attributable to it are the relevant assets and turnover to be considered. In case of a
merger or amalgamation of a portion of an enterprise or its business with another enterprise, assets and turnover of
the said portion of the enterprise or its business and that of the other enterprise are taken into account for the purpose
of calculating the thresholds under Section 5 of the Act.
Section 5(b) of the Act sets out that in case of an acquisition of control, when the acquirer already has direct/indirect
control over a third enterprise engaged in production, distribution or trading of a similar or identical or substitutable
goods or service, the value of assets and turnover considered for calculating jurisdictional thresholds are those of the
target enterprise, or its target business, whose control is being acquired along with the third enterprise over which the
acquirer already has direct or indirect control. For calculating group-level thresholds, the target’s group assets/turnover
should be considered. In case of mergers or amalgamations, the value of assets and turnover of the merged or
amalgamated entities should be considered.
The present threshold limits are:
Assets Turnover
Enterprise level India > INR 2,000 crore OR > INR 6,000 crore
(approx. USD 285 (approx. USD 855
million) million)
Worldwide (with India >USD 1 billion with at >USD 3 billion with at

component) least INR 1,000 crore least INR 3,000 crore in
in India (approx. USD India (approx. USD 427
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OR
Group Level India > INR 8,000 crore OR > INR 24,000 crore
(approx. USD 1.14 (approx. USD 3.42
billion) billion)
Worldwide (with India > USD 4 billion with > USD 12 billion with at
component) at least INR 1,000 least INR 3,000 crore in
crore in India India (approx. USD 427
(approx. USD 142 million)
million)
(Exchange spot rate on October 25, 2019, i.e. an average of the last six months, was USD 1 = INR 70.14.)
The Ministry of Corporate Affairs issued a noti cation on March 29, 2017 which provides for a de minimis exemption to
certain transactions from being noti ed. While up until 2016 the de minimis exemption only applied to acquisitions, it
has now been extended to mergers and amalgamations as well. Any enterprise whose control, shares, voting rights or
assets are being acquired, that has either assets of no more than INR 3,500 million (approx. USD 49 million) in India or
turnover of INR 10,000 million (approx. USD 142 million) in India is exempted from notifying the CCI. The exemption is
for a period of ve years.
In terms of the provisions of the Act, the value of assets is determined by taking into account the book value of assets
shown in the audited books of accounts of the enterprise for the nancial year immediately preceding the nancial year
in which: (a) the proposal relating to merger/amalgamation was approved by the Board of Directors of the enterprises
concerned; or (b) any agreement or other document for acquisition was executed. As per Section 2 (y) of the Act,
‘turnover’ includes the value of sale of goods or services.
2.5 Does merger control apply in the absence of a substantive overlap?
Yes, the parties to a Combination are mandated to le a noti cation with the CCI if the jurisdictional thresholds stand
breached. However, it is important to point out that on August 13, 2019, the CCI noti ed the Competition Commission
of India (Procedure in regard to the transaction of business relating to combinations) Amendment Regulation, 2019
(Combination Regulations 2019).
The Combination Regulations 2019 essentially introduce the ‘Green Channel’ procedure for combinations under the Act
as well as amend the current Form-I.
Firstly, by way of the Green Channel, the acquirer or the notifying party has the option to notify a combination (only in
Form-I or Short Form) to the CCI, subject to the combination satisfying the requirements of Schedule III of the
Combination Regulations 2019. The Schedule III provides that the parties to the combination, their respective group
entities and/or any entity in which they, directly or indirectly, hold shares and/or control, do not have any
horizontal/vertical/complimentary product or service(s) overlap in any plausible market de nition.
Once a noti cation has been made under the Green Channel, the proposed combination shall be deemed to be
approved by the CCI. However, in-case the CCI nds that the combination does not fall within the ambit of Schedule III,
the CCI may invalidate the noti cation only after giving an opportunity of hearing to the parties. The rst green channel
notiOUR
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2.6 In what circumstances is it likely that transactions between parties outside your jurisdiction (“foreign-to-
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foreign” transactions) would be caught by your merger control legislation?
Any merger, acquisition or amalgamation which breaches the threshold provided under the Act requires to be noti ed
with the CCI, even if the same is a foreign-to-foreign transaction. However, the exemptions are required to be checked
and in case they are available, a noti cation need not be led.
2.7 Please describe any mechanisms whereby the operation of the jurisdictional thresholds may be overridden by
other provisions.
Under Section 54 of the Act, the Central Government may exempt any class of enterprise, by way of noti cation for a
given period of time from the application of the combination governing provisions of the Act, if such exemption is
necessary (i) in the interest of State security or the public interest, or (ii) any practice or agreement which arises out of
any obligation assumed by India under any international treaty or convention with other country(ies), or (iii) if the
enterprise is performing any sovereign function.
Vide various noti cations, the Central Government has clari ed that the merger control provisions will not be applicable
in respect of the following:
Loss-making and failing banks in respect of which the Central Government has issued a noti cation under
Section 45 of the Banking Regulation Act, 1949.
Regional rural banks for which the Central Government issued a noti cation under Section 23A(1) of the
Regional Rural Banks Act, 1976.
All cases of reconstitution, transfer of whole or any part thereof and amalgamation of nationalised banks under
the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 and Banking Companies
(Acquisition and Transfer of Undertakings) Act, 1980.
Central Public Sector Enterprises (CPSEs) operating in the Oil and Gas Sectors under the Petroleum Act, 1934
and the rules made thereunder or under the Oil elds (Regulation and Development) Act 1948 and the rules
made thereunder, along with their wholly- or partly-owned subsidiaries operating in the oil and gas sectors.
2.8 Where a merger takes place in stages, what principles are applied in order to identify whether the various
stages constitute a single transaction or a series of transactions?
Regulation 9(4) of the Combination Regulations requires that where a transaction is achieved by a series of smaller
individual transactions which are inter-connected or linked, a single noti cation is required. This amendment to the
Combination Regulations was brought about in 2016. For instance, in the case of AXA India/Bharti AXA, where one
term sheet was executed in relation to two combinations, they were found to be interconnected. Further, in Blue
Star/BSIL, it was noted that a condition precedent to the scheme of amalgamation, the transfer of the IT business of
the BSIL’s subsidiaries to another company, was an interconnected step. In CCI/Thomas Cook (India), the Supreme
Court of India in its judgment, inter alia, held that when a series of transactions are envisaged to accomplish a
combination, all the transactions have to be taken into consideration by the CCI and not just an isolated transaction. It
further held that, while the parties were open to structure the transaction in any particular way, the substance of the
transactions would be more relevant to assess the effect on competition irrespective of whether such transaction was
pursued through one or more steps. Thus, the Supreme Court has made the notion of ‘interconnectedness’ subjective
and open to interpretation.
3. Noti cation and its Impact on the Transaction Timetable

3.1 Where the jurisdictional thresholds are met, is noti cation compulsory and is there a deadline for
noti cation?
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case the assets or turnover of the parties to the combination breach the jurisdictional thresholds and the transaction
requires noti cation.
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3.2 Please describe any exceptions where, even though the jurisdictional thresholds are met, clearance is not
required.
Under the Act, certain transactions have been exempted from being noti ed. Under the merger control regime, the
parties may avail of these exemptions which are provided under Schedule I of the Combination Regulations.
Furthermore, the Government of India may separately prescribe exemptions for certain enterprises from time to time by
way of noti cations.
Schedule I of the Combination Regulations treat certain categories of transactions as being not likely to cause an
appreciable adverse effect on competition (AAEC), and hence exempts them from being noti ed:
1. An acquisition, solely as an investment or in the ordinary course of business insofar as the total shares or voting
rights held by the acquirer, directly or indirectly, do not entitle the acquirer to hold 25% or more of the total shares or
voting rights of the company, not leading to acquisition of control of the target enterprise.
2. An acquisition of additional shares or voting rights of an enterprise by the acquirer or its group, where the acquirer or
its group, prior to acquisition, already holds 25% or more shares or voting rights of the enterprise, but does not hold
50% or more of the shares or voting rights of the enterprise, either prior to or after such acquisition, provided that
such acquisition does not result in acquisition of sole or joint control of such enterprise by the acquirer or its group.
3. An acquisition of shares or voting rights where the acquirer, prior to acquisition, has 50% or more shares or voting
rights in the enterprise whose shares or voting rights are being acquired, except in cases where the transaction
results in transfer from joint control to sole control.
4. An 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 the enterprise whose assets are
being acquired, except where the assets being acquired represent substantial business operations in a particular
location or for a particular product or service of the enterprise, of which assets are being acquired, irrespective of
whether such assets are organised as a separate legal entity or not.
5. An amended or renewed tender offer where a notice to the CCI has been led by the party making the offer, prior to
such amendment or renewal of the offer.
6. An acquisition of stock-in-trade, raw materials, stores and spares, trade receivables and other, similar, current assets
in the ordinary course of business.
7. An acquisition of shares or voting rights pursuant to a bonus issue or stock splits or consolidation of face value of
shares or buy-back of shares or subscription to rights issue of shares, not leading to acquisition of control.
8. Any acquisition of shares or voting rights by a person acting as a securities underwriter or a registered stockbroker
of a stock exchange on behalf of its clients, in the ordinary course of its business and in the process of underwriting
or stockbroking, as the case may be.
9. An acquisition of shares or 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.
0. A merger or amalgamation of two enterprises where one of the enterprises has more than 50% shares or voting
rights of the other enterprise, and/or merger or amalgamation of enterprises in which more than 50% shares or
voting rights in each of such enterprises are held by enterprise(s) within the same group, provided that the
transaction does not result in transfer from joint control to sole control.
1. 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 Act. This will be applicable in cases where structural
commitments are issued by the CCI (discussed below).
Further, vide Competition Commission of India (procedure in regard to the transaction of business relating to
combinations) Amendment Regulations, 2016, the acquisition of less than 10 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 the 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/or (b)
the acquirer is not
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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.
Under
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subscription of shares undertaken by foreign institutional investors, bank or venture capital funds pursuant to any
covenant of a loan agreement or investment agreement. However, under Section 6(5) of the Act, the entities are
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required to provide the details prescribed in Form III. These details include control, the circumstances for exercising
such control and the consequences of default arising out of such loan agreements or investment agreements to the
CCI within seven days from the date of acquisition. Furthermore, reference can also be made to question 2.6 above.
3.3 Where a merger technically requires noti cation and clearance, what are the risks of not ling? Are there any
formal sanctions?
Under the Act, a failure to notify/belated ling of a combination before the CCI can result in a monetary penalty of up to
1% of the total turnover or the assets of the enterprises involved, whichever is higher.
For instance, the CCI penalised Telenor (India) Communications Pvt. Ltd. Eli Lilly INR 500 thousand (approx. USD 7
thousand) for not notifying its acquisition of the global veterinary pharmaceutical business of Novartis despite the
thresholds being breached. Similarly, Schulke & Mayr was ned INR 2.5 million (approx. USD 35 thousand) for failing to
notify the acquisition of the healthcare antisepsis solutions business of Johnson & Johnson Pvt. Ltd.
3.4 Is it possible to carve out local completion of a merger to avoid delaying global completion?
The Act does not provide for a carve-out of local completion of a merger to avoid delaying global completion.
3.5 At what stage in the transaction timetable can the noti cation be led?
As stated above, the parties are required to notify and seek approval of the CCI in relation to the proposed combination
before its consummation. In case of any nancing, acquisition or subscription of shares undertaken by foreign
institutional investors, or venture capital funds registered with the Securities and Exchange Board of India (SEBI), public
nancial institutions and banks pursuant to an agreement of an investment or a loan, details prescribed in Form III are
to be noti ed within seven days from the date of acquisition. In case a transaction is noti ed under the Green Channel,
there is deemed approval by the CCI simultaneously with the ling of notice with the CCI.
3.6 What is the timeframe for scrutiny of the merger by the merger authority? What are the main stages in the
regulatory process? Can the timeframe be suspended by the authority?
Initially, the CCI is required to form a prima facie opinion as to whether the combination is likely to cause or has caused
an AAEC within the relevant market in India within 30 working days of receipt of the noti cation. If the CCI is of the
view that a transaction does not cause an AAEC, then it will approve the transaction. The CCI may direct the parties to
the combination to le additional information in terms of its inquiry under Section 20(2) of the Act. However, the clock
stops from the time of the CCI’s direction till such additional information is furnished as also during the time when the
CCI reaches out to third parties.
Under Section 29 (1) of the Act, if the CCI forms a prima facie opinion that the combination will cause an AAEC, it can
issue a ‘show cause’ notice asking why a detailed investigation should not be commenced. The parties to the
combination have to respond within 30 days.
Despite the parties’ responses, where the CCI is still of the prima facie opinion that the combination has caused or is
likely to cause an AAEC within the relevant market in India, the CCI can commence a detailed investigation process, as
a part of which the CCI may call for a report from the Director General of CCI or the CCI itself may cause an
investigation of the combination. The CCI will direct the parties to the combination to publish details of the transaction
for bringing information to the knowledge of the public and persons affected or likely to be affected by such
combination, the CCI may invite any person or member of the public to le objections, if any. The CCI can also ask the
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The CCI has to pass an order within 210 days of the noti cation; however, the clock is stopped where time is taken by
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the parties to provide any additional information sought by the CCI.
It may however be noted that under the Green Channel, a transaction is deemed to be approved simultaneously with the
ling of notice with the CCI.
3.7 Is there any prohibition on completing the transaction before clearance is received or any compulsory waiting
period has ended? What are the risks in completing before clearance is received?
Please refer to the response to question 3.3 above. Additionally as per Section 31 (10) of the Act, where the CCI has
directed under Section 31 (2) that the combination shall not take effect or the combination is deemed to have an AAEC
under Section 31 (9), then without prejudice to any penalty which may be imposed or any prosecution which may be
initiated under this Act, the CCI may order that the acquisition or merger shall not be given effect to, provided that the
CCI may, if it considers appropriate, frame a scheme to implement its order.
3.8 Where noti cation is required, is there a prescribed format?
The information required for preparing a noti cation with the CCI depends on the nature of the Form (Form-I or Form-II)
to be led. Form-I is led with the CCI when the combined market share of the parties at the horizontal level (in the
same market) does not exceed 15%. However, a Form-II may be led with the CCI, in case the combined market share
of the parties at the horizontal level exceeds 15% or the combined market share of the parties at the vertical level
exceeds 25%. Even for a green channel noti cation, a ling in the prescribed format of FORM- I needs to be made with
an additional declaration.
Both types of Forms require extensive details, however, the details required in a Form-II are much more granular. The
information requirement ranges from nancial details, details of the affected markets, business details, details of
products, etc. Moreover, the Combination Regulations also mandate the parties to submit notarised and apostilled
documents. The Forms have to be led in the English language and in case the documents are in other languages, the
parties are required to le copies of all documents translated into English.
Further, the CCI provides for a pre- ling consultation whereby the parties to the proposed combination have an option
to consult with the o cers of the CCI prior to making a ling. It is pertinent to note that the views of the CCI at such
consultations are not binding on the CCI.
The CCI also encourages the parties to share informal draft lings before the formal lings are made in order to
address/sort out issue before hand and expedite the merger clearance.
3.9 Is there a short form or accelerated procedure for any types of mergers? Are there any informal ways in which
the clearance timetable can be speeded up?
In cases where the combined market share of the parties in the horizontal markets does not exceed 15%, a short form
can be led. However, with the introduction of the Green Channel, parties can consummate transactions as soon as
the ling is made, this is subject to certain conditions, such as absence of horizontal/vertical/complimentary overlaps.
Requests for expeditious disposal of combination cases can be made to the CCI by the parties. Further, the Act
provides for a mechanism for a pre- ling consultation (PFC) where the parties to the combination can consult with the
o cers of the CCI prior to formal ling of the notice. Discussions with the o cers of the CCI at a PFC are informal and
without any legal consequence.
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encouraged to show draft form lings to the relevant case o cers at the CCI. Moreover, the parties can avail of the
assistance
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of the case teams at the CCI to ll up relevant form before ling.
3.10 Who is responsible for making the noti cation?
As to who is responsible for notifying a combination to the CCI, this depends on whether it is a merger and
amalgamation or acquisition. While in cases of an acquisition, it is the responsibility of an acquirer to le; in cases of
mergers or amalgamation, the parties are jointly responsible to notify.
3.11 Are there any fees in relation to merger control?
By way of a Noti cation dated October 30, 2019, in case of a Form I, the ling fee to be paid is INR 2.0 million (approx.
USD 28 thousand) and for a Form II, the ling fee to be paid is INR 6.5 million (approx. USD 92 thousand).
3.12 What impact, if any, do rules governing a public offer for a listed business have on the merger control
clearance process in such cases?
There is no impact.
3.13 Will the noti cation be published?
In terms of Regulation 13(1A) of the Combination Regulations, a short summary of the combination (excluding any
con dential information) is to be submitted by the parties which is published on the CCI’s website.
In the case where the CCI initiates an investigation in terms of Section 29 of the Act, it can direct the parties to the
combination to publish the details of the combination. These details are then published by the parties in Form IV, as
speci ed in Schedule II of the Combination Regulations. Under Regulation 22(5) of the Combination Regulations, the
parties are required to upload the details of the combination not only on their respective websites, but also in all India
editions of the four leading daily newspapers, including at least two business newspapers within four working days of
the CCI’s decision that the combination is likely to cause or has caused AAEC. Under Regulation 22(3), the CCI may
also post the details of the combination on its website. Further, the public version of the nal decision is uploaded on
the website of the CCI.
4. Substantive Assessment of the Merger and Outcome of the Process
4.1 What is the substantive test against which a merger will be assessed?
Under Section 6 of the Act, a combination is assessed on the ground as to whether it causes an AAEC within the
relevant market in India. Once the jurisdictional thresholds are breached, the parties are mandated to le a noti cation
with the CCI. Post the same, the CCI under Section 20(4) of the Act assesses if the combination causes an AAEC in the
market. The criterion to assess the same is enshrined in Section 20(4) of the Act. These include factors such as the
extent of barriers to entry, countervailing buying power, level of combination in the market, the extent of effective
competition likely to sustain in the market, countervailing buying power, availability of substitutes, incremental market
shares and the likelihood of the parties being able to signi cantly and sustainably increase their prices, possibility of
failing business, etc. While certain factors, such as those aforementioned are negative, a few factors are positive, such
as the relative advantage by way of contribution to economic development, nature and extent of innovation, and
whether bene ts of the combination outweigh the adverse impact. A general factor considered before making an
assessment of AAEC is whether the parties have any overlaps, horizontally or vertically. In case of the absence of
overlaps, the CCI is likely to not look at other factors.
In case of overlaps, incremental market share is one of several factors considered while looking at effects on the
market. For instance, in Tata/Bhushan Steel as well as Tata/Bhushan Power and Steel, the CCI cleared the transaction
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despite the parties having market shares in the range of 30–40% for different product markets. This was due to several
factors such as competitors not functioning at optimum capacity, level of competition through imports, presence of
larger and numerous competitors and new entrants. Further, a deciding factor is the presence of su cient competition
in the market which would pose a competitive constraint on the parties, post the combination.
4.2 To what extent are e ciency considerations taken into account?
In terms of Section 20 (4) of the Act, the CCI analyses factors such as the nature of innovation, contribution to
economic development, and bene ts resulting from the combination as well as certain negative factors. These
positive factors are indicative of synergies in the market. Notably, in the Jet/Etihad order, the CCI observed that the
acquisition of stake in one airline by another was to generate synergies in terms of network e ciencies, cost savings
and capacity addition while approving the said transaction. In one of the largest deals in the country, while approving
Bayer/Monsanto, the CCI while ordering several structural remedies, noted that the same would strengthen the
agricultural input suppliers in India, by enabling the innovation and launch of new products for the bene t of the
farmer. Moreover, in Schneider/L&T, the CCI while ordering behavioural remedies, held that the white labelling remedy
would ensure that the entity (third party) who is availing of white labelling product manufacturing services will also
receive bene ts of the continuous R&D by Schneider.
4.3 Are non-competition issues taken into account in assessing the merger?
Under Section 6 of the Act, a combination is assessed by the test of whether it causes an AAEC in the relevant market
in India which involves an economic assessment to determine the effects of the combination. The CCI examines the
economic factors prescribed under Section 20(4) of the Act such as extent of barriers to entry, countervailing buying
power, level of combination in the market, and the extent of effective competition likely to be sustained in the market.
These factors are economic and do not account for other considerations.
4.4 What is the scope for the involvement of third parties (or complainants) in the regulatory scrutiny process?
Once a combination is noti ed to the CCI, and a short 500-word summary of the combination containing details of the
combination, parties and the relevant market are published on the CCI’s website due to which third parties become
aware of the combination who can then provide comments/objections on the combination to the CCI. Thereafter,
under Regulation 19(3) of the Combination Regulations, the CCI may call for information from any other enterprise as
to whether the combination has caused or is likely to cause an AAEC in India. Under Regulation 34 of the Combination
Regulations, the CCI may seek the opinion of any other agency or statutory authority about the combination.
Further, during its detailed investigation, if ordered, once the details of the combination have been published, in terms
of Section 29(3) of the Act, the CCI may invite any person or member of the public affected or likely to be affected by
the said combination to le his written objections. Such objections must be led with 15 days of the publication of
details.
4.5 What information gathering powers (and sanctions) does the merger authority enjoy in relation to the scrutiny
of a merger?
In addition to the response provided in question 4.4 above, the CCI has been empowered under Section 36 of the Act to
regulate itsFollow
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invite experts or direct persons to assist in the conduct of an inquiry. The CCI has been given broad powers under the
Act, inter alia, to require discovery and production of documents, information, production of books of account, etc.
However, as parties to a combination are usually compliant in furnishing information, the need to exercise such harsh
powers have never been
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of multi-jurisdictional combinations. In terms of the ability to penalise, Section 45 of the Act empowers the CCI to
impose penalties upon persons who wilfully supress and/or furnish false information.
4.6 During the regulatory process, what provision is there for the protection of commercially sensitive
information?
Section 57 of the Act, read with Regulation 35 of the General Regulations and Regulation 30 of the Combination
Regulations, provide a right to the parties to seek con dentiality on documents/information which qualify as
commercially sensitive. Con dentiality in combination cases is sought by way of a separate application and supported
by an a davit by way of which the applicant needs to satisfy the CCI that making the document or parts thereof public
would result in disclosure of trade secrets, or destruction or appreciable diminution of the commercial value of any
information or would cause serious injury.
Once the CCI grants con dentiality on certain information, the same is excluded in the public version of the decision
uploaded on its website. However, the CCI may occasionally require the parties to be heard to address the
con dentiality claims sought by parties.
5. The End of the Process: Remedies, Appeals and Enforcement
5.1 How does the regulatory process end?
The regulatory process ends when the CCI passes an order approving the Combination under Section 31(1) of the Act
or disapproving the same under Section 31(2) of the Act. Further, in cases where the CCI, after having formed the
opinion that the Combination is likely to have AAEC in India, proposes modi cations, the regulatory process ends if the
parties accept the modi cations under Section 31(4). Alternatively, the parties can propose amendments to the
modi cation under Section 31(6), which if accepted by the CCI leads to termination of the process under Section 31(7)
of the Act. However, under Section 31 (11) of the Act, there is a deemed approval in case the CCI does not pass any
order under Section 31(1) or (2) within a period of 210 days from the date of ling of notice with it. The CCI publishes
the nal order on its website and supplies a duly signed copy of the order to the notifying parties. It may be noted that
as per the Green Channel, there is deemed approval by the CCI upon receipt of acknowledgment of ling of the notice.
5.2 Where competition problems are identi ed, is it possible to negotiate “remedies” which are acceptable to the
parties?
As per Section 31(3) of the Act, where the CCI is of the opinion that the combination has, or is likely to have an AAEC
but such adverse effect can be eliminated by suitable modi cation to such combination, it may propose appropriate
modi cation to the combination and the parties who accept the modi cation proposed by the CCI are mandated to
carry out such modi cation within the time period speci ed by the CCI. In the case of failure to carry out the accepted
modi cation(s) proposed by the CCI within the stipulated time, the combination shall be deemed to have an AAEC, and
will be dealt with in accordance with the provisions of the Act.
As per Section 31(6) of the Act, if the parties to the combination do not accept the modi cation(s) proposed by the CCI,
then such parties may submit amendments to the modi cation proposed by the CCI. If the CCI agrees upon the
amendment(s) submitted by the parties, the CCI shall approve the combination by an order. As per the recent
amendment to the Combination Regulations brought about on October 9, 2018, the parties to a combination can now
alternatively offer remedies in response to the CCI’s notice.
In case the CCI does not

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modi cations, the CCI has the power to reject the Combination by stating that the same causes AAEC.
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5.3 To what extent have remedies been imposed in foreign-to-foreign mergers?
There have been remedies which have been imposed upon parties in various Combinations; however, remedies have
been imposed in only those cases where there is a substantial presence of the parties in India.
5.4 At what stage in the process can the negotiation of remedies be commenced? Please describe any relevant
procedural steps and deadlines.
The process of negotiation can commence in either Phase I or in Phase II of the approval process. As per Regulation
19(2) of the Combination Regulations, the CCI may ask the parties to the combination to accept modi cations before
forming its prima facie opinion.
Further, as per the amendments to the Combination Regulations dated October 9, 2018, the parties to a Combination
can now submit remedies voluntarily in response to the notice issued under Section 29(1) of the Act (“show cause”
notice to the parties where the CCI is of the prima facie opinion that a combination is likely to cause or has caused
AAEC). If such remedies are considered su cient to address the perceived competition harm, the combination can be
approved.
Steps in relation to the process of negotiation have been detailed in response to question 5.2 above.
5.5 If a divestment remedy is required, does the merger authority have a standard approach to the terms and
conditions to be applied to the divestment?
The CCI in its orders, for instance in Schneider/ L&T, Linde/Praxair, Bayer/Monsanto, Agrium/Potash has ordered
divestment remedies with an aim to eliminate substantial overlaps of the parties in markets which are affected by the
said Combination. Moreover, the same has been done to establish a competitor(s) or strengthen the existing
competition in the markets.
The CCI in practice also lays down purchaser requirements to ensure that the purchaser of the divestment package has
the resources to effectively compete in the market. The remedies can be in the nature of structural and/or
behavioural. The same is dependant on the facts and complexity of the industry concerned.
Furthermore, as per Regulation 27 of the Combination Regulations, where the CCI believes their proposed modi cation
requires supervision, it may appoint agencies to oversee the modi cation. The agencies must be independent, having
no con icts of interest. The agencies are mandated to carry out responsibilities as speci ed by the CCI and the
payment to the agencies shall be borne by the parties by depositing it with the CCI or as directed by the CCI.
5.6 Can the parties complete the merger before the remedies have been complied with?
Closing of a transaction wherein remedies have been imposed can take place only after the approval of the CCI.
However, on a case-by-case basis, the CCI may allow the parties to close and direct them to simultaneously comply
with the remedies imposed.
5.7 How are any negotiated remedies enforced?
The remedies which are ordered by the CCI must be implemented by the parties to the Combination within certain
timelines granted by the CCI. Also, the CCI in many cases can appoint a “Monitoring Agency”, which is obligated to
collate information and oversee the divestment process. The agency is mandated to present a report on the status of
theOUR
divestment
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5.8 Will a clearance decision cover ancillary restrictions?

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While reviewing a noti cation, if the CCI is of the opinion that certain ancillary restrictions exist in the transaction
documents, the CCI can direct the parties to the Combination to modify such restrictions.
5.9 Can a decision on merger clearance be appealed?
Yes, as per Section 53A of the Act, an appeal can be preferred before the National Company Law Appellate Tribunal
(NCLAT) by any person aggrieved by such an order passed. The NCLAT decision can be appealed thereafter before the
Hon’ble Supreme Court of India.
5.10 What is the time limit for any appeal?
As per Section 53B of the Act, any appeal from the order of the CCI in Combination cases has to be led within a period
of 60 days from the date of receipt of the order. Further, in cases where an appeal is to be led before the Supreme
Court of India, the same needs to be led within 60 days from the date of communication of the decision or order of the
NCLAT to the parties to the combination. On su cient cause being shown, NCLAT as well as Supreme Court may
entertain an appeal after the expiry of 60 days from the date of receipt of order/direction.
5.11 Is there a time limit for enforcement of merger control legislation?
As per the proviso to Section 20(1) of the Act, the CCI shall not initiate any inquiry into a combination after the expiry of
one year from the date on which such Combination has taken effect.
6. Miscellaneous
6.1 To what extent does the merger authority in your jurisdiction liaise with those in other jurisdictions?
The CCI has entered into MoUs with the USA, EU, Russia, Brazil, Canada, China and South Africa, etc., as on March 31,
2018 and is a part of the International Competition Network (ICN).
6.2 What is the recent enforcement record of the merger control regime in your jurisdiction?
An approach of providing expedited approvals with minimum delay has been adopted by the CCI, while looking at
acquisitions of insolvent and defaulting companies. Several acquisitions of insolvent companies have been approved
by the CCI of late. Notably, the average approval time taken by the CCI for approving a combination as on 31 March
2018 (per its annual report) is approximately 23 days.
The CCI in Schneider/L&T, the CCI ordered multiple remedies such as white labelling of products to certain
competitors, provision of technology licence after the expiry of the white labelling period, restriction on replacing or
increasing its distributors, amendments to existing distribution agreements, etc. In Linde/Praxair, the CCI directed the
acquirer to sell all of its shareholding in a subsidiary which was present in the overlapping market for industrial gases
encompassing tonnage, bulk and cylinder business. In its order in Bayer/Monsanto, the CCI directed the appointment
of an independent monitoring agency to supervise the modi cations, which related to the impact on business
operations in India. This agency was made responsible for reporting a work plan, overseeing the management of
divestment business, ensuring the non-exchange of con dential information, etc. Apart from this, Bayer was asked to
divest certain portions of its vegetable seed business, whereas Monsanto was asked to divest its shareholding in
subsidiaries present in overlapping business.
In smaller transactions, it is seen that despite the parties having signi cant market shares for certain overlapping
products, the CCI has provided unconditional approval in light of the prevalent conditions in the market such as the
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onslaught of new entrants, presence of several competitors, a lack of optimum capacity utilisation of existing players
and fragmentation in the market. Thus, it is seen that the CCI has begun to take a practical effects-based approach,
which is particularly needed in insolvency cases arising from the Insolvency and Bankruptcy Code, 2016 (IBC).
Further, from a governmental standpoint, the current regime in India has a focus towards facilitating the ‘ease of doing
business in India’ and the same can be seen in the changes brought about in the Combination Regulations, for instance
the introduction of the Green Channel, parties can now submit remedies voluntarily in response to the CCI’s notice,
removal of 30 days’ time limit to le a notice. If such remedies su ciently address the harm to competition, the
combination would be approved. Further, it has been made permissible for the parties to withdraw and re le instead of
facing an invalidation in case the notice suffers from informational gaps. In 2017, in a bid to exempt smaller deals
from scrutiny, the Ministry of Corporate Affairs introduced the “size of the business” test and made the de minimis
exemption applicable only to the assets being acquired.
6.3 Are there any proposals for reform of the merger control regime in your jurisdiction?
The Ministry of Corporate Affairs on 18 October 2018 constituted the Competition Law Review Committee (CLRC) to
review the Act including attendant rules and regulations to look at international best practices in competition elds.
The Report of the CLRC was published on 26 July 2019 and it recommended certain amendments to the Act and
Regulations, concerning ‘combinations’. These include:
introduction of a ‘material in uence’ standard for determination of control. Details of what constitutes ‘material
in uence’ may be provided in a subordinate legislation;
amendments to the de nition of ‘group’ to include ‘26% or such other thresholds as noti ed by the Central
Government’ and clarify and cover scenarios where one enterprise controls the other, instead of where ‘two or
more enterprise’ exercise control over another enterprise;
combinations arising out of insolvency matters under the IBC should be eligible for Green Channel;
addition of mandatory 30-day timeline for completion of Phase-I review procedure to be included in the Act;
insertion of enabling provision empowering the Government to introduce necessary thresholds including deal-
value threshold for merger noti cation;
streamline the exemptions from noti cation under Section 5 of the Act;
form subordinate legislation on exemptions for acquisition of minority interest and the basis of assessment of
the same on the principle of substance over form;
to integrate target-based exemptions into the Act;
dilution of standstill obligations in case of public bids and hostile takeovers;
to give both CCI and notifying parties equal opportunity for proposing remedies at various junctures of the
assessment process;
to encourage self-compliance by companies who are subjected to remedies, annual reports of companies to
contain disclosure regarding compliance with remedies;
inserting all permissible time exclusions from the 210-day timeline for assessment of mergers to be codi ed
within the Act to bring in transparency;
Amendment to Section 43A to include penalties for gun-jumping (insertion of express provision) and for lings
made pursuant to inquiry under Section 20 (1); and
enhancement of penalty in cases where parties make false statement or omission to furnish material
information
6.4 Please identify the date as at which your answers are up to date.
These answers are up to date as of October 30, 2019.

7. Is Merger
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address digital mergers?

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The Report of the CLRC moots the proposition as to whether the Act is equipped to address the pressing issues of
digital markets. The Report discusses the features of the market and highlights that digital markets show strong
‘returns to scale’ – the cost of production is lesser in proportion to the number of customers served. It further states
that markets with strong network effects tend to produce markets with a small number of ‘clear leaders’, making it
di cult for small rms to survive unless they deliver highly innovative products and services. The committee notes
that personal data mobility and systems with open standard have been identi ed as key tools to increase
interoperability and thereby increase competition and consumer choice. However, the anti-trust implications lie in the
accumulation and use of data by data- rich incumbents.
The Report analysed the factor ‘price of goods or services’ under Section 19 (7) of the Act which is one the factors for
determination of relevant product market and concludes that the de nition of ‘price’ as per Section 2 (o) of the Act is
broad enough to capture non-monetary considerations like data.
Additionally, the Report states that the existing merger control framework in India is based on an asset and turnover
threshold, however, the business model in digital markets is such that they may fail to generate signi cant revenue for a
number of years given that the focus of a business is typically on user growth in order to exploit the network effects of
such markets. Therefore, jurisdictions that rely on such asset and turnover thresholds for merger control may expose
themselves to the risk of letting high value transactions in digital markets to escape. Thus, the Report recommends the
introduction of ‘size of transaction’ or ‘deal value’ threshold may be introduced to bring mergers in the digital market
space under the ambit of the CCI.
7.2 Have there been any changes to law, process or guidance in relation to digital mergers (or are any such
changes being proposed or considered)?
There is no change yet. CLRC Report is being considered by the Government.
7.3 Have there been any cases that have highlighted the di culties of dealing with digital mergers, and how have
these been handled?
Not to date.
Acknowledgment
The authors appreciate and thank Arjun Nihal Singh for his assistance in the preparation of this chapter.
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Contributors India: Merger Control 2020

ICLG.com > Practice Areas > Merger Control > India

Chapter Content Free Access

1. Relevant Authorities and Legislation G.R. B

3. Noti cation and its Impact on the Transaction Timetable

Substantive Assessment of the Merger and Outcome of the

5. The End of the Process: Remedies, Appeals and Enforcement L&L Pa

7. Is Merger Control Fit for Digital Services and Products?

1. Relevant Authorities and Legislation

1.1 Who is/are the relevant merger authority(ies)?

1.2 What is the merger legislation?

Construction & Engineering

Foreign Direct Investment R

2.2 Can the acquisition of a minority shareholding amount to a “merger”?

2.3 Are joint ventures subject to merger control?

The present threshold limits are:

Worldwide (with India >USD 1 billion with at >USD 3 billion with at

3. Noti cation and its Impact on the Transaction Timetable

3.8 Where noti cation is required, is there a prescribed format?

3.10 Who is responsible for making the noti cation?

3.11 Are there any fees in relation to merger control?

3.13 Will the noti cation be published?

4. Substantive Assessment of the Merger and Outcome of the Process

4.2 To what extent are e ciency considerations taken into account?

5. The End of the Process: Remedies, Appeals and Enforcement

5.1 How does the regulatory process end?

In case the CCI does not

5.3 To what extent have remedies been imposed in foreign-to-foreign mergers?

5.8 Will a clearance decision cover ancillary restrictions?

5.9 Can a decision on merger clearance be appealed?

5.10 What is the time limit for any appeal?

5.11 Is there a time limit for enforcement of merger control legislation?

These answers are up to date as of October 30, 2019.

address digital mergers?

There is no change yet. CLRC Report is being considered by the Government.

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