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Content last updated: 13-02-2020

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  • Merger Control Regime
  • Merger Screening
  • Merger Filing

1. Supranationality

1.1 Membership of Supranational Organization

1.1.1 Is the jurisdiction a member of/party to a supranational jurisdiction?

No.

1.1.2 Is the jurisdiction itself a supranational jurisdiction?

No.

1.1.3 If the answer to Section 1.1.1 and/or 1.1.2 above is in the affirmative, what are the implications hereof?

Not applicable.

2. Nature of merger control regime

2.1 Mandatory or voluntary

2.1.1 Is filing mandatory or voluntary?

Filing is mandatory if the thresholds described in Section 2.3.1 under the Merger Screening Schedule are met.

2.2 Suspensory effect

2.2.1 Must completion of the transaction await clearance by the relevant authorities?

Transactions subject to review by the Competition Commission of India cannot be consummated (either in part or full) until clearance has been obtained from the Competition Commission of India or a period of 210 calendar days (excluding clock stops) has passed, whichever is earlier.

The suspensory effect extends to: (i) steps of inter-connected transactions which are exempt on a standalone basis; and (ii) closing of global transactions which have an Indian leg (even if the Indian leg has not been consummated).

1. What type of transactions are caught by the merger control regime?

1.1 Concentrations

1.1.1 Type of transactions that are caught by the merger control rules?

The following transactions are caught by the merger control rules:

(a) the acquisition by one or more persons of control, shares, voting rights or assets of one or more enterprises; and

(b) mergers or amalgamations.

1.2 Joint ventures

1.2.1 What types of joint ventures are caught by the merger control rules?

While the formation of a joint venture (JV) is not specifically covered by the Competition Act, JVs are not per se exempt from notification requirements under the Competition Act.

A greenfield JV is not required to be notified to the Competition Commission of India.

However, a brownfield JV (where the parent entities contribute existing assets or businesses or confer control over them) may necessitate a notification to the Competition Commission of India, if the asset and turnover thresholds described in Section 2.3.1 below are met. In practice, a brownfield JV is treated as an acquisition by the joint venture company for the purposes of determining the notifiability under Indian competition law.

Further, there is no distinction made between full-function JVs and non-full-function JVs under the Competition Act.

Please see Section I of the FAQs on combinations available at https://www.cci.gov.in/node/2847 for guidance on treatment of JV under the Competition Act.

1.3 Definition of "control"

1.3.1 How are the concepts of "control" and "change of control" defined?

“Control” is defined under the Competition Act to include: ”controlling the affairs or management” by:

(a) one or more enterprises, either jointly or singly, over another enterprise or group;

(b) one or more groups, either jointly or singly, over another group or enterprise.

While there is no substantive test for “control” under the Competition Act, the Competition Commission of India, by way of its decisional practice, has interpreted “control” to mean the ability to exercise decisive influence over the management or affairs and strategic commercial decisions of a target enterprise (including its annual business plans, budgets, amendments to memorandum of association and articles of association, appointment/remuneration of senior management and creation of new lines of business). Such decisive influence is capable of being exercised by way of a majority shareholding, veto rights (associated with a minority shareholding) or contractual covenants and will need to be assessed on a case-to-case basis.

While the concept of “change of control” is not defined under the Competition Act, a change from joint to sole control may trigger notification requirements.

1.4 Minority shareholdings

1.4.1 Are minority and other interests less than control caught by the merger control rules?

An acquisition of shares/voting rights, solely as an investment or in the ordinary course of business, which does not entitle the acquirer to hold 25% or more shareholding of the target and does not lead to an acquisition of control (as described in 1.3.1 above) of the target is typically exempt from notification requirements.

In particular, acquisition of less than 10% of shares will be viewed solely as an investment and be exempt, if:

a) The acquiring enterprise’s rights in the target are such which are also exercisable by the ordinary shareholders of the target, to the extent of their respective shareholding;

b) The acquiring enterprise is not a member of the board of directors of the target and does not have a right or the intention to nominate one; and

c) The acquiring enterprise does not intend to participate in the affairs or management of the target enterprise.

The applicability of this exemption is subjective and needs to be examined on a case by case basis.

2. Establishing jurisdiction for notification of mergers

2.1 Merging parties/undertakings concerned

2.1.1 Which undertakings are considered parties to the merger ("undertakings concerned") in the various types of transactions identified under Section 1.1.1 and 1.2.1.

The “undertakings concerned” are the persons or enterprises entering into the combination.

Mergers/amalgamations:

For the Parties Test, in the case of a merger or amalgamation, the undertakings concerned are the merging/amalgamating enterprises (including their units, divisions and subsidiaries).

When calculating the group level assets/turnover for the Group Test, the undertakings concerned are the merging/amalgamating enterprises and the group to which the merged/amalgamated enterprise will belong post the proposed merger/amalgamation.

Further, in the case of mergers, the target entity is the entity which ceases to exist post the merger; In the case of amalgamations, all amalgamating entities (including their units, divisions and subsidiaries) shall be considered as target entities.

Acquisitions:

In the case of an acquisition, for the Parties Test, the undertakings concerned are the acquiring enterprise and the target enterprise (including their units, divisions and subsidiaries).

When calculating the group level assets/turnover for the Group Test, the undertakings concerned are the group to which the target enterprise will belong post acquisition and the target enterprise (including its units, divisions and subsidiaries).

Acquisition of control when acquirer already has control over another enterprise engaged in similar goods or service:

In the case of acquisition of control by a person over an enterprise when such person already has direct or indirect control over another enterprise engaged in production, distribution or trading of similar or identical or substitutable goods or provision of similar or identical or substitutable services, the undertakings concerned for the Parties Test are the target enterprise (i.e. including its units, divisions and subsidiaries) and the enterprise over which the acquiring enterprise already has direct or indirect control (i.e. including its units, divisions and subsidiaries).

For the Group Test, the undertakings concerned are the group to which the target enterprise would belong post acquisition and the enterprise over which the acquiring enterprise already has direct or indirect control (i.e. including its units, divisions and subsidiaries).

2.2 Date for establishing jurisdiction

2.2.1 Which date is relevant for concluding whether the transaction is notifiable?

The relevant date for concluding whether a transaction is notifiable is:

a) In the case of a merger/amalgamation, the date on which the proposal relating to merger/amalgamation was approved by the board of directors of the undertakings concerned; and

b) In the case of an acquisition, the date on which any binding agreement/other document for acquisition was executed.

2.3 General thresholds

2.3.1 Threshold(s) for when a concentration must be notified under the general merger control regime?

Mandatory notification to the Competition Commission of India is required if any of the following alternative sets of thresholds are met (and no exemptions are available):

The first alternative threshold:

Parties Test: Notification is required when the target enterprise(s) (all amalgamating enterprises in case of an amalgamation), including its divisions, units and subsidiaries holds assets of more than INR 3,500,000,000 in India, and generates turnover of more than INR 10,000,000,000 in India, and the acquirer and target (all amalgamating enterprises in case of an amalgamation), including divisions, units and subsidiaries, jointly have:

(a) assets in excess of INR 20,000,000,000 in India; or

(b) turnover in excess of INR 60,000,000,000 in India; or

(c) worldwide assets in excess of USD 1,000,000,000, including at least INR 10,000,000,000 in India; or

(d) worldwide turnover in excess of USD 3,000,000,000, including at least INR 30,000,000,000 in India.

The second alternative threshold:

Group Test: Notification is required when the target enterprise(s) (all amalgamating enterprises in case of an amalgamation), including its divisions units and subsidiaries, holds assets of more than INR 3,500,000,000 in India, and generates turnover of more than INR 10,000,000,000 in India, and the target enterprise(s) (including units, divisions and subsidiaries) and the group to which the target enterprise(s) will belong post transaction (all amalgamating enterprises and the group to which the amalgamated enterprise will belong post amalgamation), jointly have either:

(a) assets in excess of INR 80,000,000,000 in India; or

(b) turnover in excess of INR 240,000,000,000 in India; or

(c) worldwide assets in excess of USD 4,000,000,000, including at least INR 10,000,000,000 in India; or

(d) worldwide turnover in excess of USD 12,000,000,000, including at least INR 30,000,000,000 in India.

In the case of mergers, the target entity is the entity which ceases to exist post the merger; In the case of amalgamations, all amalgamating entities (including their units, divisions and subsidiaries) shall be considered as target entities.

Where a portion of an undertaking or division or business is being acquired, merged or amalgamated with another enterprise, the value of assets and turnover of the said portion or division or business, or attributable to it, has to be considered instead of the entire target undertaking (including the target’s divisions, units and subsidiaries).

For the purposes of the Group Test, “Group” refers to two or more enterprises which, directly or indirectly, are in a position to:

(a) exercise fifty per cent or more of the voting rights in the other enterprise; or

(b) appoint more than fifty per cent of the members of the board of directors in the other enterprise; or

(c) control the management or affairs of the other enterprise.

Exemptions:

Transactions that are 'ordinarily' exempt under Combination Regulations: Transactions set out in Schedule I of the Combination Regulations (such as acquisitions not amounting to control, which are in the ordinary course of business/solely as investments, intra group acquisitions not leading to change in control, etc.) are presumed not to cause an appreciable adverse effect on competition in India and ‘normally’ do not require a notification.

The Combination Regulations including Schedule 1 can be found at: https://www.cci.gov.in/sites/default/files/faq/Combination%20Regulations%202016%20-%20FINAL.pdf

Please see Section 2.4.1 for further, sector-specific, exceptions.

2.3.2 For each threshold, can the threshold be triggered by only one party having local turnover?

The thresholds can be triggered by only one party having local turnover (provided such party is the target and has local assets in India).

2.3.3 For each threshold, can the threshold be triggered without any party having local turnover?

The thresholds cannot be triggered without any party having local turnover.

2.3.4 Are there any circumstances where transactions falling below these thresholds may be still investigated?

The Competition Commission of India has the power to inquire whether a transaction is notifiable or not. However, such inquiry cannot be initiated by the Competition Commission of India after the expiry of one year from the date on which such transaction was consummated. The Competition Commission of India does not have the jurisdiction to investigate non-notifiable transactions (unless the non-notifiable transaction is interconnected to a transaction, which is notifiable with the Competition Commission of India).

2.4 Other national thresholds for ex ante merger control (e.g. sector-specific rules)

2.4.1 Relevant thresholds for sector-specific or other ex ante merger control rules?

Transactions specifically exempt under the Competition Act:

Acquisitions, share subscriptions or financing facilities entered into by public financial institutions, registered foreign institutional investors, banks or registered venture capital Funds, under a covenant in a loan agreement or an investment agreement. Such transactions require a post facto notification to the Competition Commission of India in Form III within 7 days from the date of completion.

The format of Form III is available on the Competition Commission of India’s website at:

https://www.cci.gov.in/sites/default/files/cci_pdf/Form_III.docx

Sector-specific exemptions under the Competition Act: The Government of India has exempted:

(a) banking companies from the notification requirement when a notification of moratorium (ordinarily issued to ‘failing’ banks that are financially and operationally weak and are on the brink of insolvency) has been issued in respect of such companies;

(b) Regional Rural Banks and nationalized banks; and

(c) central public sector enterprises along with their subsidiaries operating in the oil and gas sectors from application of merger control rules.

The above exemptions are not applicable ad infinitum and are available for a limited time period (ranging from 5-10 years).

2.4.2 Are any such schemes mandatory or voluntary?

Not applicable.

2.5 Foreign-to-foreign mergers

2.5.1 Do any exemptions, special thresholds etc. apply to foreign-to-foreign mergers, i.e. where none of the undertakings concerned is domiciled in the jurisdiction?

Transactions meeting the above thresholds have to be notified to the Competition Commission of India, regardless of whether the undertakings concerned are domiciled outside of India.

3. Calculation and allocation of turnover, asset value, transaction value etc.

3.1 Relevant turnover

3.1.1 How is turnover defined (e.g. is income from other sources than "ordinary activities to be included, and how are rebates, taxes, internal turnover etc. treated)?

Only income derived from sales, supply or distribution of goods or on account of services rendered, including exports from India, is considered. Indirect taxes and intra group sales are to be excluded.

In relation to intra group sales, only the sales made by and between Indian group entities are to be excluded while determining the Indian turnover. Sales made by Indian based group entities to group entities based outside India are not to be excluded while determining the Indian turnover.

3.1.2 Identification and link to any official rules, guidance etc. on how to calculate turnover?

Guidance on computation of turnover can be found in Section V of the FAQs on combinations (available at https://www.cci.gov.in/node/2847). 

3.2 Relevant period for calculation of turnover

3.2.1 Which financial year(s) is relevant for the calculation of turnover?

The turnover should be based on the financial year immediately preceding the financial year in which the binding transaction documents/board approval (as applicable) in relation to the transaction are executed/passed. Typically, the audited financial report is used to determine the turnover. In case the financial report is unavailable, whether a transaction is notifiable is determined on the basis of provisional statements.

3.2.2 Should adjustments be made for e.g. divestitures, acquisitions, closings and other changes of the economic reality of the undertaking concerned made after or during the relevant financial year?

Generally, no. 

3.3 Relevant undertakings for the calculation of turnover

3.3.1 The "undertakings concerned", i.e. which parties?

See Section 2.1.1 above.

3.3.2 The undertakings whose turnover is taken into account?

See Section 2.1.1 above.

3.3.3 Shall the turnover of the existing seller be included in the target's group turnover?

The seller’s turnover shall not be included in the target’s turnover.

3.4 Geographical allocation of turnover

3.4.1 The principles for the geographical allocation of turnover?

The Competition Act does not provide principles for the geographical allocation of turnover. While examining the Indian entity’s financial statements, any export revenues are not deducted, and the entire turnover on the books of accounts are considered.

3.5 Valuation and allocation of assets

3.5.1 The principles for valuation and allocation of assets?

Under the Competition Act, the value of assets shall be determined by taking the book value of the assets as shown, in the audited consolidated books of account of the enterprise, in the financial year immediately preceding the financial year in which the transaction is taking place, as reduced by any depreciation. The value of assets shall include the brand value, value of goodwill, or value of copyright, patent, permitted use, collective mark, registered proprietor, registered trademark, registered user, homonymous geographical indication, geographical indications, design or layout- design or similar other commercial rights.

3.6 Calculation of other thresholds

3.6.1 The principles for calculation of metrics for other thresholds (e.g. transaction value, market share, share of supply etc.)?

Not applicable.

3.7 Special rules

3.7.1 Do any special rules or principles apply to the calculation, allocation etc. of turnover, assets etc. for specific undertakings (e.g. State-owned undertakings, investment funds, credit and financial institutions, insurance companies, financial holding companies, others)?

Specific rules apply to the calculation of turnover for banking and insurance enterprise, which can be found in Section V of the FAQs on combination available at https://www.cci.gov.in/node/2847.

3.7.2 Does any exemptions apply?

Not applicable.

1. Practical information

1.1 Responsibility for filing

1.1.1 The parties responsible for filing?

In case of an acquisition of control, shares, voting rights or assets, the acquirer is responsible for filing.

In case of a merger or amalgamation, the notification must be jointly submitted by the merging parties.

1.2 Deadlines for filing

1.2.1 Are there any mandatory deadlines for filing, and, if so, how these are calculated?

There are no mandatory deadlines for filing.

However, a transaction meeting the thresholds described in Section 2.3.1 of the Merger Screening Schedule has to be notified to the Competition Commission of India prior to its implementation and following the execution of a binding agreement/other document or passing of a board resolution, as the case may be. Further, in case of a composite transaction involving a series of steps or smaller individual transactions which are inter-connected, the Competition Commission of India has to be notified, prior to implementation of any such steps to the composite transaction.

1.2.2 Are there any sanctions for not filing within the deadlines?

Not applicable.

1.3 Early filing

1.3.1 Is it possible to file before the signing of merger agreement?

The trigger document for an acquisition is the signed agreement or ‘other document’. For a merger/amalgamation, the trigger document is a board resolution. 

A merger notification may be filed even without a merger agreement, provided a detailed binding term sheet/MoU is filed with the merger notification. However, this is very case specific, and in practice, the Competition Commission of India typically waits for the parties to sign and submit a binding agreement (post submitting the merger notification) in order to approve the combination. “Other document” shall mean any binding document, by whatever name called, conveying an agreement or decision to acquire control, shares or voting rights. Specifically, where a public announcement has been made, in terms of the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 2011, such public announcement shall be deemed to be the “other document”.

1.4 Filing fees

1.4.1 Are there any fees for filing, and, if so, please describe how such fees are calculated?

The filing fee for short form (i.e. Form I) is INR 2,000,000 and for long form (i.e. Form II) is INR 6,500,000.

The Competition Act provides for a self-assessment regime to determine the form of notification to be filed with the Competition Commission of India. Typically, a Form II (long form) filing is made only in the event: (i) the combined market share of the parties, who are competitors, exceeds 15% in the relevant market; or (ii) the combined market share of parties, who operate in vertically linked markets, is more than 25% in either the upstream or the downstream market.

1.4.2 When must the filing fee must be paid?

The filing fee must be paid upon/prior to filing the notification and the proof of payment forms a part of the notification when filed with the Competition Commission of India.

1.5 Publicity

1.5.1 When and in which format will the authority publish receiving a notification?

The notifying party(ies) are required to submit a non-confidential summary (not exceeding 1,000 words) of the transaction at the time of filing. The Competition Commission of India publishes this summary on its website as soon as it receives the notification.

1.5.2 How will the authority in general handle the case publicly, e.g. will it usually comment in the media, send out press releases etc.?

As a matter of practice, the Competition Commission of India abstains from commenting on active cases in the media. However, pursuant to adoption of a decision, the Competition Commission of India publishes the order on its official website and in certain cases, sends out a press release following a decision.

1.5.3 Will third parties be able to review the notification?

Third parties are typically not allowed to review the confidential version of the notification. However, upon filing an application with the Competition Commission of India and demonstrating sufficient cause, the Competition Commission of India may permit the third parties to review a non-confidential/redacted version of the notification.

2. Procedure and timing

2.1 Normal and simplified procedures

2.1.1. Does the regime allow for a simplified (fast track) procedure, and, if so, what are the criteria for using the simplified procedure?

The Green Channel route allows parties to receive an on-spot approval from the Competition Commission of India immediately after submitting Form I, provided the following conditions are met.

The parties to the combination, their respective group entities and/or any entity in which they, directly or indirectly, hold shares and/or control:

(a) do not produce/provide similar or identical or substitutable product(s) or service(s);

(b) are not engaged in any activity relating to production, supply, distribution, storage, sale and service or trade in product(s) or provision of service(s) which are at different stages or levels of production chain; and

(c) are not engaged in any activity relating to production, supply, distribution, storage, sale and service or trade in product(s) or provision of service(s) which are complementary to each other.

2.2 Procedural stages (cf. timetable below)

2.2.1 The various stages of (i) a simplified procedure and (ii) a normal procedure?

Pre-Notification Stage:

While not mandatory/customary, parties intending to file a notice with the Competition Commission of India (CCI) are encouraged to approach the CCI for an informal pre-filing consultation in relation to any doubts/queries.

For more guidance on pre-filing consultation, please see: https://www.cci.gov.in/sites/default/files/cci_pdf/pfc.pdf

Phase I investigation (Prima Facie Review):

When the formal notification (in Form I/Form II) is submitted to the CCI and accepted as complete, the clock starts running on the CCI’s "Phase I" investigation.

Within 30 working days of the filing of the notification, the CCI is required to form a prima facie opinion on whether a combination will cause or is likely to cause an appreciable adverse effect on competition (AAEC) in the relevant market in India (except in case of Green Channel, where the parties receive an on-spot approval immediately after filing a merger notification with the CCI).

The 30-day timeline, which constitutes Phase I, is not absolute as the CCI can “stop the clock” for further information and the time taken by the parties to submit such information is excluded from the 30-day timeline. The CCI may also engage in discussions and meetings with the parties.

During the Phase I review, if the CCI seeks information from third parties, including competitors, customers or suppliers, the CCI has an additional 15 working days for arriving at its prima facie view. 

Further, where modifications are voluntarily offered by parties in Phase I itself, the time period is further extended by 15 working days.

If the CCI is satisfied that the combination does not cause, nor is likely to cause, an AAEC, or, that its concerns can be addressed through remedies or modifications offered by the parties, it will approve the combination at the end of Phase I.

Phase II Investigation (In-depth investigation)

If the CCI forms a prima facie opinion that a combination is likely to cause an AAEC within the relevant market in India, it shall issue a show cause notice (SCN) to the parties asking for an explanation as to why an investigation into the combination should not be conducted. The parties are given 30 calendar days to reply to the SCN.

Once the reply has been provided by the parties, the CCI may either direct the Director General (investigative arm of the CCI) to conduct a detailed investigation or do so on its own.

Within 7 working days from the date of receipt of the response from the parties or the Director General report (whichever is later), the CCI directs the notifying parties to publish details of the combination within 10 working days through newspapers, respective websites and CCI’s official website (under a prescribed format, i.e. Form IV). The objective being to invite comments from the public in relation to the proposed combination. Once the comments are received by the CCI, it may request further information or seek clarifications from the parties in relation to the comments received from the public or stakeholders. At this stage, the CCI may invite any person or member of the public, affected or likely to be affected by the combination, to file their written objections before the CCI within 15 working days from the date on which the details of the combination are published. 

Thereafter, within the 15 working days from the expiry of the period mentioned above, the CCI may also call for additional information from the parties which should be furnished within a further 15 days.

After receipt of all information and within a period of 45 working days from the additional information received from the parties, the CCI will proceed to pass an order either:

(a) approving the combination; or

(b) directing that the combination should not take effect, based on the opinion that it causes or is likely to cause an AAEC; or

(c) proposing appropriate modifications to the combination. If the parties do not accept the modifications proposed by the CCI, they can within 30 working days submit amendments to the proposed modification. If the CCI agrees with such amended modifications, it shall approve the combination.

2.2.2 Is pre-notification contact with the relevant authorities customary/obligatory/encouraged/etc.?

The Competition Commission of India is increasingly encouraging parties to contact the Competition Commission of India at the pre-notification stage in an attempt to expedite the review process.

2.2.3 Are there any sanctions for not filing within the deadlines?

Not applicable.

2.3 Timetable (cf. timetable below)

2.3.1 The statutory timetable/deadlines for review of a notification?

Please refer to the description set out in Section 2.2.1 above.

2.3.2 Can the statutory timetable/deadlines be suspended ("stop-the-clock"), and if so under which conditions?

The statutory timetable/deadline is suspended when:

(a) the Competition Commission of India requests for further information/clarifications from the notifying parties; or/and

(b) the Competition Commission of India reaches out to third parties, including customers, suppliers and competitors in relation to the proposed combination.

2.3.3 If pre-notification with the relevant authorities contact is possible/customary, how long will the duration of such contact usually be?

Given that there is no formal pre-notification contact, there is no statutory timetable/deadline for the same.

3. Format and content of notification

3.1 Notification forms

3.1.1 Must the notifying parties use any mandatory notification forms, e.g. for simplified and normal procedures, and, if relevant, add a link to the relevant forms?

The Competition Commission of India has mandatory notification forms for filing short form (Form I) and long form (Form II). The templates of the forms are available on the website of Competition Commission of India at: http://cci.gov.in/sites/default/files/cci_pdf/Form_I.docx (Form I) and https://www.cci.gov.in/sites/default/files/cci_pdf/Form_II.docx (Form II).

3.2 Supporting documentation

3.2.1 List of the supporting documentation which must as a minimum be submitted along with the notification?

Cf. checklist below.

3.3 Originals, legalization and apostillation (cf. checklist below)

3.3.1 List of all documents which must be submitted in original/legalized versions and whether any documents must be apostilled?

Original authorization letter in favour of a person signing the notification;

Original authorization letter in favour of a person located in India who is authorized to receive communication(s) on behalf of the notifying party(ies) from the Competition Commission of India;

Original declaration page, which declares the contents of the merger notification to be true and correct; and

Confidentiality Affidavit. The confidentiality affidavit is required to be notarized and consularized/apostilled (as applicable).

Green Channel Declaration (in case an approval is sought under the green channel route)

3.3.2 If the merger regime has a mandatory filing deadline, must all the documents identified under Section 3.3.1 be submitted within this deadline?

Not applicable.

3.4 Language

3.4.1 Which languages may be used for drafting and filing a notification?

The notification can be made only in English.

3.4.2 Does translations have to be certified/legalized and apostilled?

Typically, translations have to be certified/legalized and apostilled.

Statutory timetable

Step Description Time
1

Pre-notification

While not mandatory/customary, parties intending to file a notice with the Competition Commission of India (CCI) are encouraged to approach the CCI for an informal pre-filing consultation in relation to any doubts/queries.


Given that there is no formal pre-notification contact, there is no statutory timetable/deadline for the same.

2

Phase I investigation (Prima Facie Review)

When the formal notification (in Form I/Form II) is submitted to the CCI and accepted as complete, the clock starts running on the CCI’s "Phase I" investigation.

Within 30 working days of the filing of the notification, the CCI is required to form a prima facie opinion on whether a combination will cause or is likely to cause an appreciable adverse effect on competition (AAEC) in the relevant market in India (except in case of Green Channel, where the parties receive an on-spot approval immediately after filing a merger notification with the CCI).

If the CCI is satisfied that the combination does not cause, nor is likely to cause, an AAEC, or, that its concerns can be addressed through remedies or modifications offered by the parties, it will approve the combination at the end of Phase I.


The 30-day timeline, which constitutes Phase I, is not absolute as the CCI can “stop the clock” (cf. 2.3.2 above) for further information and the time taken by the parties to submit such information is excluded from the 30-day timeline. The CCI may also engage in discussions and meetings with the parties.

If the CCI seeks information from third parties, including competitors, customers or suppliers, the CCI has an additional 15 working days for arriving at its prima facie view.

Further, where modifications are voluntarily offered by parties in Phase I itself, the time period is further extended by 15 working days.

3

Phase II Investigation (In-depth investigation)

If the CCI forms a prima facie opinion that a combination is likely to cause an AAEC within the relevant market in India, it shall issue a show cause notice (SCN) to the parties asking for an explanation as to why an investigation into the combination should not be conducted. The parties are given 30 calendar days to reply to the SCN.

Once the reply has been provided by the parties, the CCI may either direct the Director General (investigative arm of the CCI) to conduct a detailed investigation or do so on its own.

Within 7 working days from the date of receipt of the response from the parties or the Director General report (whichever is later), the CCI directs the notifying parties to publish details of the combination within 10 working days through newspapers, respective websites and CCI’s official website (under a prescribed format, i.e. Form IV). The objective being to invite comments from the public in relation to the proposed combination. Once the comments are received by the CCI, it may request further information or seek clarifications from the parties in relation to the comments received from the public or stakeholders. At this stage, the CCI may invite any person or member of the public, affected or likely to be affected by the combination, to file their written objections before the CCI within 15 working days from the date on which the details of the combination are published.

Thereafter, within 15 working days from the expiry of the period mentioned above, the CCI may also call for additional information from the parties which should be furnished within a further 15 days.

After receipt of all information and within a period of 45 working days from the additional information received from the parties, the CCI will proceed to pass an order either:

(a) approving the combination; or

(b) directing that the combination should not take effect, based on the opinion that it causes or is likely to cause an AAEC; or

(c) proposing appropriate modifications to the combination. If the parties do not accept the modifications proposed by the CCI, they can within 30 working days submit amendments to the proposed modification. If the CCI agrees with such amended modifications, it shall approve the combination.

The Competition Commission of India has 210 days (plus extensions) from the date of notification for concluding the Phase I and Phase II assessment. Hence, the time limit for concluding Phase II investigation is 210 days (plus extensions) less the amount of days spent on Phase I.

  • Step 1 1
  • Step 2 2
  • Step 3 3
  • Not defined
  • 30 days + extensions
  • 210 days (plus extensions) less the amount of days spent on Step 2

Checklist

List of the supporting documentation which must as a minimum be submitted along with the notification.

Supporting documentation

This content was delivered
and last updated on 13-02-2020 by
Contact Person
Avaantika Kakkar, Partner, Head-Competition Law

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