Overview
India’s competition law jurisprudence is older than most of the other developing countries with regulations dated as early as 1969. The Monopoly and Restrictive Trade Practices Act, 1969 was the first competition related legislation and was enacted mainly to prevent concentration of economic power and to prohibit monopolistic or unfair trade practices. Today, before conducting certain M&A transaction in India, an approval from the Competition Commission of India (“CCI”), being the only antitrust authority in India is required as per the Competition Act, 2002 (“Act”). An M&A transaction that qualifies as a “Combination” under Section 5 of the Act, is required to be notified to the CCI unless the transaction is exempted. Such notification to the CCI has to be filed by the acquirer in case of an acquisition and jointly by the merging or amalgamating parties in case of a merger or amalgamation.
Section 5 of the Act states that a transaction shall be qualified as Combination when a) control, voting rights, assets or shares of a company are acquired by a person; b) acquisition of control of an enterprise where the acquirer already has direct or indirect control over another entity engaged in identical business; or c) a merger or amalgamation between enterprises.
The reason for such approval from the CCI is to prevent practices that have an adverse effect on competition or to hinder abuse of a dominant position in the relevant market:
- Appreciable Adverse Effect. As per Section 3 of the Act, any agreement including cartel entered in respect of production, supply, distribution, storage, control etc. which directly or indirectly determines purchases and sale prices; limits or control production, supply, markets, technical development, investment or provision of services; directly or indirectly results in bid rigging or collusive bidding are presumed to have appreciable adverse effect on competition in India. In the case of Builders Association of India vs. Cement Manufacturers Association,[1] the CCI held that the presumption of anti-competitive agreements can be inferred from the intention or conduct of the parties along with circumstantial evidence. In this case although there was no agreement, circumstantial evidence of parallel changes in the prices and production of goods indicated that the parties had form a cartel to determine purchase/sale prices and control production, supply, investment, development etc.
- Abuse of Dominant Position. As per Section 4 of the Act, dominant position is defined as a position of strength, enjoyed by an enterprise in the relevant market in India which enables the enterprise to operate independently of competitive forces in relevant market or can affect competitors, consumers or relevant market in its own favour. Imposing unfair or discriminatory condition or price in sale and purchase of goods and services; limiting or restricting production of goods, services, technical/scientific development; indulging in practice resulting to denial of market access; making conclusion of contracts subject to acceptance by other parties; or using its dominant position in one market to enter into another relevant market results in abuse of dominant position as per the Act. In the case of Shri Shamsher Kataria vs. Honda Siel Cars India Ltd & Ors,[2] the CCI held that 14 car companies in India had abused their dominant position in their respective after markets by requiring customers to purchase spare parts and diagnostic tools solely from the respective car manufacturer or its authorized dealers.
Transaction which qualify as Combination cannot be legally consummated until the CCI grants its approval or the review period of 210 days as provided by the Act has expired[3], whichever is earlier. Before such final verdict, the CCI is required to form a prima facie opinion on the Combination within a period of 30 working days from the notification[4]. The CCI has the power to approve, disapprove or impose modification to a transaction under Section 31 of the Act.
Mergers
Corporate restructuring in the form of M&A often leads to anti-competitive issues. There are essentially three types of mergers that may lead to anti-competitive issues:
- Horizontal Merger. It refers to combination or merger of two companies at the same level of production or distribution in the relevant market. Horizontal mergers are predominantly undertaken by companies to increase value i.e. to utilize economies of scale, increase market power and exploit cost based and revenue-based synergies. However, such mergers eliminate competitors and changes the competitive environment so that the merging companies could more easily coordinate on price, output and other dimension of competition. For example: Merger of HP (Hewlett-Packard) and Compaq in 2011 and merger of Daimler-Benz and Chrysler in 1998.
- Vertical Merger. It refers to merger of two companies at different levels of production chain, essentially, between companies that operate at different, but complementary levels of the market for the same end product. Vertical mergers can often lead to collusion between merger companies and third parties or foreclosure of upstream/downstream market to third parties in the form of limiting or controlling the competitor’s access to key inputs or outlets. For example: Merger between AOL (America Online) and Time Warner in 2000, acquisition of Pixar Animation Studios by Walt Disney in 2006, merger between AT&T and Time Warner in 2016 etc.
- Conglomerate Mergers. It refers to a merger between businesses that operates in completely different product markets. Such mergers are rarely anticompetitive by nature, however such mergers have the potential to eliminate future competitors and delay price competition. In US, conglomerate mergers are excluded from merger review guidelines. For Example: Merger of Walt Disney Company and ABC (American Broadcasting Company) in 1995, acquisition of Whole Foods by Amazon in 2017 etc.
Jurisdictional Threshold
Pursuant to a notification dated March 4, 2016,[5] released by the Central Government, the statutory threshold for the purpose of Combination under Section 5 of the Act is as follows:
| Assets | Turnover | |||
| Enterprise Level | India | > INR 20 billion |
OR |
> INR 60 billion |
| Worldwide with India leg | >USD 1 billion with at least > INR 10 billion in India | >USD 3 billion with at least > INR 30 billion in India | ||
| OR | ||||
| Group Level | India | > INR 80 billion |
OR |
> INR 240 billion |
| Worldwide with India leg | >USD 4 billion with at least > INR 10 billion in India | >USD 12 billion with at least > INR 30 billion in India | ||
Green Channel Route
CCI vide its notification dated August 13, 2019[6] amended the Competition Commission of India (Procedure with regard to transaction of Business relating to combinations) Regulations, 2011 (“Combination Regulation”) to introduce ‘Green Channel’. Such introduction was in line with the suggestion of the Competition Law Review Committee (“CLRC”) report of July 2019 to make the Combination Regulation quicker and efficient, keeping in mind the need to enable fast paced approvals from CCI for majority of mergers and acquisitions that may have no major impact or appreciable adverse effect on competition in India. Combinations which fall under the categories as laid down in Schedule III of the Combination Regulation i.e. when no horizontal, vertical or complementary overlaps either between the parties of their respective group entities and/or entities in which they directly or indirectly hold shares or control, are required to notify the CCI under the ‘Green Channel Route’ in Form I and declaration specified in Schedule IV on the Combination Regulation. Upon such notification, the parties get a ‘deemed approval status’ for such Combination.
Trigger Documents
- Any executed agreement or document conveying decision to acquire control, shares, voting rights or assets.
- Mergers & Amalgamations. Board resolution of the companies specifying the merger/amalgamation proposal.
- Government Transactions. Notification issued by the relevant Cabinet Committee.
- Acquisition under Insolvency and Bankruptcy Code, 2016. Notification pursuant to the resolution plan of the resolution applicant.
- Hostile Acquisition. Document executed by the acquiring enterprise conveying a decision to acquire control, shares or voting rights.
Insolvency and Bankruptcy Code
The Insolvency and Bankruptcy Code, 2016 was amended in 2018, via notification[7] dated August 17, 2018 to introduce a provision for transactions under a Corporate Insolvency Resolution Process (“CIRP”) that tantamounts to Combination in terms of Section 5 of the Act. Applicants for the resolution plan under such CIRP are required to obtain approval of the CCI under the Act prior to the approval of the resolution plan by the committee of creditors.[8]
Non-Compete Clauses
The CCI consider and analyses non-compete clause (“NCC”) in an agreement as ‘ancillary’ restraints or restrictions directly related and necessary to the Combination. Such NCCs can be viewed as anti- competitive in nature if viewed in isolation, but when seen as a whole, such restraints are crucial for attaining the Combination’s economic objective. Example: non-compete clauses, non-solicitation clauses, licensing agreements, exclusive supply obligations etc. CCI via its Guidance Note[9], clarified that a NCC is anti- competitive if it is not ancillary to a Combination.
Exemptions
It has been clarified that for the purpose of determining whether a Combination is exempted, the assets and turnover value of the specific business or division being acquired or merged is to be considered. Certain Combinations are exempted under the Act. The exemptions are listed out below:
- De-minimus Threshold. Companies being party to any form of Combination, where the value of assets being acquired, taken control of or merger/amalgamation is not more than INR 3.5 billion in India or turnover of not more than INR 10 billion in India are excluded from obtaining prior approval of the CCI.[10]
- Schedule I of the Combination Regulation. Categories of Combinations not likely to cause any appreciable adverse effect in competition in India are detailed in Schedule I of the Combination Regulation. Acquisition of shares or voting rights or assets within the same group; acquisition of shares where the acquirer holds 50% or more shares prior to the acquisition; acquisition of raw material, stock in trade, stores, spares in the ordinary course of business; merger or amalgamation of two companies where one company has more than 50% shares or voting rights of the other company are few of the exemptions listed under Schedule I.
- Other Categories. The Central Government, under Section 54 of the Act has the power to exempt any company or a class of companies from the applicability of the provisions of the Act. Nationalized banks, regional rural banks, central public sector enterprises operating in oil and gas sectors and banks that are under moratorium as per Section 45 of the Banking Regulation Act, 1949 are some of the exemptions notified by the Central Government.
Penalty
Failure to notify the CCI would attract penalty under Section 43A of the Act, which may extend to 1% of the total turnover or assets of the Combination, whichever is higher. The CCI also has the power under the Act, to inquire into a Combination either suo motu or on receipt of information in relation to whether such Combination has caused or likely to cause an appreciable adverse effect in the relevant market in India.
Competition in the US
US, unlike India has multiple agencies and legislation to address antitrust issues. The Sherman Antitrust Act of 1890 (“Sherman Act”), the Federal Trade Commission Act of 1914 (“FTC Act”) and the Clayton Antitrust Act of 1914 (“Clayton Act”), together forms the core federal antitrust laws in effect in US today. The Sherman Act mainly deals with contracts, conspiracy or combinations in restraint of trade and monopolization, while the FTC Act deals with unfair methods of competition, deceptive acts or practices. The Clayton Act, simultaneously addresses issues that the Sherman Act does not prohibit like mergers and interlocking directorates. Apart from these federal statutes, most states have antitrust laws (based on the federal antitrust laws) that are enforced by state attorney general or private plaintiffs.
Agencies that bears most of the responsibility of enforcing the antitrust laws in US are the Antitrust Division of the United States Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”). While DOJ is a part of the executive branch of the government, FTC acts as an independent agency, much like the CCI. However, it is to be noted that in case of criminal prosecution in relation to antitrust, the DOJ has the exclusive authority to prosecute.
Competition in the UK
In UK, two sets of competition rules currently apply, i.e. the Competition Act, 1998 and the Enterprise Act, 2002. However, if the effect of a business conduct extends beyond UK to the other European Union (“EU”) member states, the EU competition law, which originates from Articles 101 and 102 of the Treaty on the Functioning of European Union along with the EU Merger Regulation and the EU Block Exemption Regulation shall apply.
Agencies in UK bearing the responsibility to enforce both UK and EU competition law are Competition and Markets Authority (“CMA”) and the Competition Commission. Within individual industry sectors, the UK utility regulators like Office of Communication (Ofcom), Water Service Regulation Authority (Ofwat), Office of Gas and Electricity Markets (Ofgem) etc have concurrent powers with the CMA to enforce UK and EU Competition Law. The European Commission shall be the primary enforcement body to ensure compliance with the EU competition laws in the states of the EU.
It is required to be highlighted that post Brexit, till the end of the transition period i.e. December 31, 2020, EU competition laws will continue to apply in UK. After the transition period, the CMA and other concurrent regulators will no longer have the authority to enforce EU competition laws in the UK, however, jurisdiction over matters which were previously reserved for the European Commission shall be retained by such regulators.
Competition in Singapore
Singapore, like India only has one legislation i.e. the Competition Act (Cap. 50B) (“COA”) for prohibiting anti-competitive business practices. It is largely based on the UK competition law model and incorporates minor elements from the Indian competition law.
COA adopts an outcome-based approach by mainly focusing on anti-competitive agreements, decisions, practices; abuse of dominant market position and mergers affecting competition in the marketplace. The Competition Commission of Singapore (“CCS”), established under the COA is entrusted with the responsibility of overseeing the administration and enforcement of the COA. The CCS has wide powers to conduct investigation, if there is a reasonable ground for suspecting an infringement. Appeals in relation to rulings by the CCS (except those in relation to block exemptions) are heard by the Competition Appeal Board.
Conclusion
Competition in India has grown significantly over the past few years, and the CCI has done good work as an efficient competition regulator despite being understaffed. CCI to engage with parties and to eliminate any ambiguity has always kept an open-door policy to clarify any doubts or issues by parties engaged in a Combination. Notifications and amendments with the objective of ease of doing business, but at the same time prohibiting anti-competitive practices, have been released over the past few years by the CCI, in particular, allowing parties to refile a merger notification, allowing modification to response to a show cause notice, exemption from the requirement to give a notification within 30 days from the execution of a trigger document etc. To further such objective, the Government of India has also incorporated the CLRC to address various challenges faced in relation to competition and updates and recommends changes to the prevalent competition laws in practice in India, catering specifically to the need of the regulators, companies, consumers etc.
While the competition jurisprudence in India is not as old as the US, it can be presumed that the CCI is taking steps towards adapting its process to the best competition practices in the world.
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[1] Builders Association of India v. Cement Manufacturers Association, Case No. 29 of 2010 (Competition Commission of India, 31/8/2016).
[2] Shri Shamsher Kataria vs. Honda Siel Cars India Ltd & Ors, Case No. 03 of 2011 (Competition Commission of India, 25/08/2014).
[3] S. 6(2A), The Competition Act, 2002.
[4] Regulation 19(1), Competition Commission of India (Procedure with regard to transaction of Business relating to combinations) Regulations, 2011.
[5] See: https://www.cci.gov.in/sites/default/files/quick_link_document/Revised%20thresholds.pdf
[6] Competition Commission of India (Procedure with regard to transaction of Business relating to combinations) Amendment Regulations, 2019 available at https://www.cci.gov.in/sites/default/files/notification/210553.pdf.
[7] Insolvency and Bankruptcy Code (Second Amendment) Act, 2018.
[8] S. 31(4), The Insolvency and Bankruptcy Code, 2016.
[9] See: http://cci.gov.in/sites/default/files/Non-Compete/Guidance_Note.pdf
[10]See:https://www.cci.gov.in/sites/default/files/notification/S.O.%20988%20%28E%29%20
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