CCI’s Quorum Quandary

In October 2022, upon the retirement of former Chairperson Mr. Ashok Kumar Gupta, the CCI lost the quorum to approve any notified transactions. With around 20 M&A deals worth USD 1.5 billion in limbo, the Ministry of Corporate Affairs (MCA) was at the receiving end of concerns expressed by the business community. To remedy this unprecedented situation, the MCA, after receiving the nod from the Attorney General of India, permitted the invocation of the ‘doctrine of necessity’ after nearly three months of the CCI first being inquorate. To the relief of foreign and domestic investors, the ‘doctrine of necessity’ paved the way for the CCI to clear the back log of pending transactions.

In May 2023, the Government appointed Mrs. Ravneet Kaur as the Chairperson of the CCI.^[1] Mrs. Kaur, along with members Mr. Bhagwat Singh Bishnoi and Ms. Sangeeta Verma, restored quorum to the CCI. Upon the retirement of Mr. Bishnoi and Ms. Verma in August and September, the CCI also appointed three new members – Mr. Anil Agrawal, Ms. Sweta Kakkar (the first CCI member from the private sector), and Mr. Deepak Anurag. The CCI now has four members (including the Chairperson) and is quorate.

Remedies Galore

The CCI has the power to seek and/ or impose remedies if it is of the view that a transaction is likely to negatively impact competition in India. To date, the CCI has adopted a mix of structural remedies (divestments), behavioural remedies, and hybrid remedies (a combination of structural and behavioral remedies) to conditionally approve transactions.

2023 saw the CCI impose remedies in four transactions, the second highest number of remedy decisions in a single calendar year since the CCI’s inception. The CCI continues to adopt both behavioural and structural remedies in different cases, depending on its in-depth assessment of the affected markets and the operations of the transacting parties.

First remedy in a transaction involving an entity undergoing the corporate insolvency resolution process

The CCI conditionally approved AGI Greenpac’s (AGI) acquisition of 100% of the equity share capital of Hindusthan National Glass & Industries (HNG), which was undergoing the corporate insolvency resolution process.^[2] Both AGI and HNG operate in the market for the manufacture and supply of packaging materials and cater to a broad range of industries. AGI and HNG were the top two players in the overlapping markets with capacities/ volumes which imposed strong competitive constraints on each other. Unsurprisingly, the CCI’s assessment found that AGI and HNG had high combined and incremental market shares in the segments for ‘container glass’ (55-60%), ‘food & beverage’ (80-85%) and ‘alco-beverages’ (45-50%). On account of such high combined and incremental market shares, the CCI was of the prima facie opinion that the transaction was likely to cause an appreciable adverse effect on competition (AAEC) in India. To alleviate the CCI’s concerns, AGI offered the voluntary divestment of the Rishikesh manufacturing plant of HNG. Considering that the Rishikesh plant was engaged in the manufacture and sale of container glass for all sub-segments, the divestment was accepted by the CCI as it was self-contained and would either incentivize a new entry or augment the capacity of an existing competitor of AGI and HNG.

Addressing issues of common ownership

An additional investment in Acko Technology and Services (Acko) by General Atlantic (GA), a private equity fund, got caught in the cross hairs of the CCI, owing to concerns of common ownership of and information exchange between direct competitors.^[3] After its decision on ChrysCapital’s investment in Intas Pharmaceuticals (2020) in the private equity space and several other decisions, this is the sixth instance of the CCI addressing issues of common ownership through remedies.

Acko^[4] held certain shareholding and the right to appoint an observer in Vivish Technologies (Vivish), which runs the gated community management software ‘MyGate’. GA held approximately 32% stake in NoBroker Technologies Solutions (NoBroker) which is also engaged in a similar business to that of Vivish. Both Vivish and NoBroker were considered to be significant players in the ‘gated community management solutions’ market in India by the CCI. Owing to GA’s common ownership in the two prominent players in the gated community management solutions market after the proposed transaction, the CCI raised concerns of softening of competition. To alleviate these concerns, GA committed to implement strict firewalls between NoBroker and Vivish, ensuring that it would not participate in affairs related to Vivish or Acko’s investment in Vivish, would not access any non-public information relating to Vivish possessed by Acko, and would not influence or engage any person appointed by Acko in any capacity in Vivish (including as an observer on the board of Vivish).

CCI imposes remedy on ‘potentially’ overlapping markets

The Indian pharmaceutical sector has been a hotbed for M&A for the past few years. In 2023, the sector saw M&A deals worth INR 469 billion.^[5] Among these deals, Ipca Laboratories’ (Ipca) acquisition of approximately 60% shareholding of Unichem Laboratories (Unichem) was approved by the CCI subject to behavioural remedies, on account of certain ‘potential’ overlaps in the market for formulations.^[6] Interestingly, this is the first remedy decision in relation to a ‘potential’ overlap between parties on a standalone basis.

Both Ipca and Unichem were active in the overlapping markets of the sale and manufacture of certain identical/ substitutable active pharmaceutical ingredients (APIs) in India. These overlapping markets were assessed by the CCI, and the CCI did not find any AAEC concerns in India on account of low-combined market shares of Ipca and Unichem, combined with the presence of several other players in each overlapping market.

Ipca and Unichem also ‘potentially’ overlapped in the horizontal market for manufacture of formulations and the vertical market for the manufacture of APIs (upstream) and manufacture of formulations (downstream). These ‘potential’ overlaps were not identified in the notification form because even though Ipca sells formulations in India, Unichem does not sell formulations in India and its formulations business is entirely export oriented. Nonetheless, the CCI analyzed these ‘potential’ horizontal/ vertical overlaps and found that, based on estimations, both Ipca and Unichem were insignificant players in the formulations market in India. However, despite this finding, Ipca and Unichem provided voluntary behavioural commitments under which Unichem would not re-enter the Indian formulations market for a period of 36 months from the date of closing of the transaction.

Behavioural remedies for a transaction between competitors in the airlines sector

In what was the most anticipated transaction in the Indian civil aviation sector, the merger of Tata SIA Airlines (which operates under the name ‘Vistara’) (Vistara) with Air India was approved by the CCI, subject to certain behavioural remedies.^[7] This marks only the second instance of the CCI imposing pure behavioural remedies in a direct competitor deal.^[8]

Air India and Vistara had horizontal overlaps in several segments of the air transportation services market and enjoyed high market shares in respect of destinations in South-East Asia, South Asia, Middle East, and Europe. Based on its prima facie assessment, the CCI was of the view that the transaction would lead to an oligopolistic market structure where only 30%-35% of the market would remain contestable between competitors of Air India and Vistara. This would result not only in increased prices for end-consumers, but also limited choices in terms of number of airlines.

The CCI concluded that subject to certain capacity commitments on specific domestic and international routes (voluntarily proposed by Air India and Vistara), the transaction would enable the merged entity to perform better through improved efficiencies, network integration and financial stability, leading to the creation of an effective and credible domestic airline competitor. The capacity commitments would preserve competitor pressure on prices, discourage price escalation, and strike a balance between allowing a merger for potential efficiency gains while safeguarding consumers against the adverse effects of reduced competition.

CCI’s hard stance on contravention

The CCI imposed fines totaling INR 2.55 crores for contravention of the key provisions on merger control under the Competition Act, 2002. Most notably, the CCI imposed the first ever penalty for non-adherence to the conditions of the ‘green channel’ route.^[9]

Introduced in 2019, the ‘green channel’ route allows parties to obtain deemed approval of the CCI for their transaction provided the transacting parties directly or indirectly do not have any horizontal overlaps in India, actual or potential vertical relationship in India and complementary products in India. The ‘green channel’ route has been lauded by the industry for simplifying the process in non-problematic cases and reducing the timelines for approval.

ADIA and TPG jointly notified their acquisition of 5% shareholding of UPL Sustainable Agri Solutions (UPL SAS) under the ‘green channel’ route. However, the CCI observed that TPG already held a 22.2% stake in UPL Corporation (UPL Corporation), a subsidiary of which was engaged in the business of manufacturing and distribution of formulated crop protection products. UPL SAS was also engaged in the same business as UPL Corporation. Hence, the CCI observed that the transaction did not satisfy the conditions prescribed for availing of the ‘green channel’ route. For this contravention, the CCI levied a penalty of INR 55 lakhs on ADIA and TPG.

This decision of the CCI underscores two critical aspects. First, the importance of rigorous due diligence, ensuring all criteria of the ‘green channel’ route are met before a filing is made. Second, the importance of being on the same page with the CCI before formally filing under the ‘green channel’ route.

Competition Amendment Act – New Wine In A New Bottle

Another key highlight of 2023 has been the developments made in relation to the Competition Amendment Act, 2023 (Amendment Act). The Amendment Act received Presidential assent on 11 April 2023, following which certain provisions of the Amendment Act were notified on 18 May 2023.^[10]

While the Amendment Act introduced several new provisions relating to merger control, including the highly anticipated ‘deal value threshold’ and certain relaxations on acquisitions through open market purchases, the specific operating mechanism of most of these provisions were clarified in the draft Competition Commission of India (Combinations) Regulations, 2023 (Draft Combination Regulations).^[11]

The CCI issued the Draft Combination Regulations for public consultation on 5 September 2023,^[12] seeking inputs from various stakeholders. In addition to introducing new provisions, the Draft Combination Regulations aim to modify and bring up-to-date various aspects of the existing combination regulations. Upon implementation, the Draft Combination Regulations will replace the current combination regulations. The relevant provisions of the Amendment Act relating to merger control will only be brought into force after that.

Deal value thresholds

A notable change under the Amendment Act was the introduction of the deal value threshold (DVT) to include transactions that are presently not required to be reported under the existing thresholds based on assets or turnover. Under the proposed DVT, transactions with deal values greater than INR 2,000 crore (approximately USD 240 million) will have to be notified to the CCI, provided that the target enterprise has ‘substantial business operations in India’. While the provisions in relation to DVT are yet to be notified and brought in force, the Draft Combination Regulations have provided guidance on the calculation of the value of transactions and determination of ‘substantial business operations in India’.

Under the Draft Combination Regulations, the methodology for calculation of the value of transaction has been set out in a catch-all provision and includes every consideration, irrespective of whether it is direct, indirect, immediate, deferred, cash or otherwise.^[13] This catch-all definition also provides for an indicative list of inclusions for this computation, such as non-compete fees, consideration for options and securities and contingent payments.^[14] Interestingly, the Draft Combination Regulations provide that where the true and complete transaction value is not recorded in the transaction documents, the value considered by the board of directors (or any other approving authority) while considering the transaction, is to be factored in.^[15] In case the precise transaction value cannot be established with ‘reasonable certainty’, it is to be presumed that the INR 2,000 crore threshold is breached.^[16]

By providing for a catch-all definition of DVT, the CCI has achieved its objective of ensuring that stakeholders are not able to circumvent the new threshold. The stakeholders have expressed concerns over the ambiguous and widely inclusive nature of the DVT, including the fact that its application has been extended to traditional markets despite the intent of the DVT being to catch transactions in new-age, asset-light markets like ‘big tech’. The widely inclusive nature of the DVT may compel some stakeholders to unnecessarily notify their transaction to err on the side of caution.

Relaxations for on-market transactions prior to CCI approval

Another key change introduced by the Amendment Act, in line with other jurisdictions, is the ability of parties to close open market purchases on a stock exchange without the CCI’s approval. While this welcome change, which will allow businesses to make time-sensitive acquisitions without concerns about having to publicly disclose such transactions and being subject to any resultant price changes, is yet to be notified, the Draft Combination Regulations provide additional clarity on its operation.^[17]

To avail of the benefits of this provision, the acquirer must notify the transaction within 30 days of the date of acquisition of the shares from the open market. During the CCI’s review and approval of this on-market transaction, the acquirer can only avail of economic benefits like receiving dividends, disposing of the shares, and exercising voting rights in matters relating to liquidation or insolvency proceedings. Further, during this period, the acquirer cannot influence the target’s activities in any direct or indirect manner.

Increase in filing fees

Last but not the least, the Draft Combination Regulations propose to increase the filing fee from INR 20 lakhs to INR 30 lakhs for a short form (a 50% increase), and from INR 65 lakhs to INR 90 lakhs for a long form (a 38% increase).^[18]

What’s next?

Although many provisions of the Draft Combination Regulations are sound and pragmatic, there are certain aspects that require closer scrutiny. Stakeholders have provided their inputs on the Draft Combination Regulations to the CCI through the public consultation process, and the CCI is expected to release the finalized regulations early in 2024.

2024 – What’s in store?

Despite a shaky start, 2023 has been another strong year for the CCI, with emphasis being placed on bringing the remaining provisions of the Amendment Act into force. The publication of the Draft Combination Regulations for public consultation was another step closer to this goal. Under a completely new leadership, the CCI has also continued to keep a close eye on contravention and problematic transactions and has taken the necessary steps to maintain a balance between ensuring competition in the Indian market while also making it easier for parties to undertake business in India.

2024 marks the 14th year of the Indian merger control regime. In the last few years, several new-age merger control issues have come under the CCI’s radar. With increasing investments by private equity funds bringing with them concerns of cross-ownership in competitors, information exchange between portfolio companies and interlocking directorates, the CCI is set to be hot on the heels of the private equity sector in 2024, making antitrust-related due diligence even more critical.

All eyes are now set on 2024, which could be the biggest year for the Indian merger control regime, with the remaining provisions of the Amendment Act as well as the revised combination regulations likely to be notified. It is to be seen how the CCI manages the introduction of the new, more sophisticated law, a heavier caseload on account of the DVT, and new-age problems coming to the fore.

Footnote

[1] Notification by the MCA appointing Smt. Ravneet Kaur as Chairperson to the CCI, available here.

[2] Combination Registration No. C-2022/11/983, available here.

[3] Combination Registration No. C-2023/04/1017, available here.

[4] GA already had 15.54% of the equity share capital in Acko prior to the transaction.

[5] ‘M&A and investing activity in India healthcare sector likely to continue at strong levels’, Financial Express, source here.

[6] Combination Registration No. C-2023/05/1028, available here.

[7] Combination Registration No. C-2023/04/1022, available here.

[8] Prior to the CCI’s conditional approval in Air India/ Vistara, the only instance of pure behavioral remedies in a case involving horizontal overlaps was Schneider Electric’s acquisition of the electrical and automation business of Larsen & Toubro, available here.

[9] In re: Proceedings against Platinum Jasmine A 2018 Trust, acting through its trustee Platinum Owl C 2018 RSC Limited and TPG Upswing Limited under Section 43A and 44 of the Competition Act, 2002, available here.

[10] Among the limited provisions notified currently is the provision in relation to the furnishing of false information or failure to furnish material information for a transaction, the penalty for which has been increased from INR 1 crore to INR 5 crore.

[11] Draft Combination Regulations, released for public/ stakeholder consultation, available here.

[12] Background Note to the Draft Combination Regulations, available here.

[13] Regulation 4(1), Draft Combination Regulations.

[14] Regulation 4(1), Draft Combination Regulations.

[15] Explanation (c) to Regulation 4(1), Draft Combination Regulations.

[16] Explanation (g) to Regulation 4(1), Draft Combination Regulations

[17] Regulation 6, Draft Combination Regulations.

[18] Regulation 11, Draft Combination Regulations.

This article was originally published in Mondaq on 29 January 2024 Co-written by: Aparna Mehra, Partner; Ritika Sood, Senior Associate; Karan Arora, Associate. Click here for original article

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