Yes. The merger control regime in India is governed by the Competition Act, 2002 ("Competition Act") and the Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Regulations, 2011 (as amended) ("Regulations"). 

The Competition Commission of India ("CCI") is the national regulatory agency established for merger control and other competition law issues in India. Certain orders of the CCI can be appealed before the National Company Law Appellate Tribunal ("NCLAT"), which replaced the Competition Appellate Tribunal ("COMPAT") in May 2017. Orders of the NCLAT can be appealed to the Supreme Court of India.

No, there is no supranational regulatory agency with exclusive competence. 

Yes. The merger filing requirements are set out in Section 6 of the Competition Act, read with the Regulations.

The Competition Act requires all acquisitions (of shares, voting rights, assets or control) and mergers and amalgamations that cross specified jurisdictional thresholds (collectively described as ‘combinations’) to be notified to the CCI for its approval prior to their consummation. Combinations that cause, or are likely to cause, an appreciable adverse effect on competition ("AAEC") in the relevant market in India, is prohibited and void. 

There are a number of exemptions provided for in Government notifications and in Schedule I to the Regulations. The main exemptions are as follows:

Target Exemption: Transactions where the target, or the merging entity, has either Indian assets of less than INR 3.5 billion or Indian turnover of less than INR 10 billion, are exempt from notification. This exemption is valid until March 28, 2022. 

Banks: Transactions involving certain regional rural banks are exempt from notification until August 10, 2022. Separately, until August 30, 2027, transactions involving reconstitution, amalgamation or transfer of the whole/part of nationalized banks under specific banking laws do not have to be notified.

Oil and Gas Sector: Central public sector enterprises (along with their subsidiaries) operating in the oil and gas sectors are exempt from merger notification requirements until November 22, 2022.

Minority Investments: Acquisitions of less than 25 percent of the shareholding or voting rights, made ‘solely as an investment’ or in the acquirer’s ‘ordinary course of business’ which do not result in the acquisition of control need not be notified to the CCI (see the next section). Notification is also not required for acquisitions of additional shares or voting rights, where the acquirer or its group already holds 25 percent or more of the shares or voting rights, but will not hold 50 percent or more after the acquisition, provided this does not result in the acquisition of sole or joint control.

Increase in Control: Acquisitions where the acquirer already holds 50 percent or more of the shares or voting rights in the target enterprise will not be notifiable, save where the transaction results in a transfer from joint to sole control.

Asset Acquisitions: Notification will not be required for the acquisition of assets not directly related to the business of the acquirer or made solely as an investment or in the ordinary course of business, where this does not lead to control of the target enterprise (except where the assets represent substantial business operations of the target enterprise in a particular location or for a particular product or service).

Intra-Group Reorganisations: Notification will not be required where there is an acquisition of shares, voting rights or assets within the same group, save where the acquired enterprise is jointly controlled by enterprises that are not part of the same group. It will also not be required for a merger or amalgamation of two enterprises where one enterprise has more than 50 percent of the shares or voting rights of the other enterprise, or a merger or amalgamation of enterprises in which more than 50 percent of the shares or voting rights in each of the enterprises are held by enterprises within the same group; this exemption is not available if the transaction results in a transfer from joint to sole control.

Other Exemptions: Other exemptions under Schedule I to the Regulations include: (a) acquisitions of stock-in-trade, raw materials and trade receivables; (b) acquisitions pursuant to a buyback or a bonus issue; (c) acquisitions by a person acting as a securities underwriter or a registered stockbroker; and (d) acquisitions by a purchaser approved by the CCI (for instance, in case of a divestiture). 
 

Yes. Acquisition of a minority shareholding may be notifiable where there is an acquisition of control or where, even absent control, the acquisition is seen as ‘strategic’ in nature. 

The Competition Act sees control in terms of an enterprise ‘controlling the affairs or management’ of another. The CCI has interpreted control to mean ‘the ability to exercise decisive influence over the management or affairs and strategic commercial decisions’ of a target enterprise. In some recent cases, it has expanded the scope of control to cover ‘material influence’. In addition to affirmative rights, veto rights attached to a minority shareholding may constitute control.

Schedule I to the Regulations ordinarily exempts transactions that involve the acquisition of less than 25 percent shareholding, solely as an investment or in the ordinary course of business, provided it does not result in an acquisition of control. The acquisition of less than 10 percent of total shares/voting rights will be treated as being solely an investment if the acquirer: (i) has the ability to exercise only the rights of ordinary shareholders exercisable to the extent of their respective shareholding; (ii) is not a member of the board of directors of the target and does not have the right to nominate such members in future; and (iii) does not intend to participate in the management or affairs of the target. 

Yes. Foreign-to-foreign transactions satisfying the jurisdictional thresholds are, unless otherwise covered by an exemption, subject to merger review in India, and will have to be notified even if there is no local nexus and effects on markets in India. However, the absence of a local nexus and effects should expedite the review and clearance process. 

The Competition Act provides for jurisdictional asset/turnover thresholds on a Parties basis and a Group basis.
The thresholds provided under the Competition Act (read with the relevant Government notification) are set out below: 

Parties Test:

• the parties have combined assets in India of INR 20 billion or combined turnover in India of INR 60 billion; or
• the parties have combined worldwide assets of USD 1,000 million including combined assets in India of INR 10 billion or combined worldwide turnover of USD 3,000 million including combined turnover in India of INR 30 billion.

Group Test:

• the group has assets in India of INR 80 billion or turnover in India of INR 240 billion; or
• the group has worldwide assets of USD 4,000 million including assets in India of INR 10 billion or worldwide turnover of USD 12,000 million including turnover in India of INR 30 billion.

The value of assets is calculated by taking into account the book value of fixed assets (net of depreciation), intangible assets (such as goodwill, investments and intellectual property rights) and current assets not excluding current liabilities, as recorded in the audited books of account of the enterprise for the previous financial year. 
The value of turnover is calculated by taking the value of the sale of goods and services, excluding any indirect taxes, as recorded in the audited books of account of the enterprise for the previous financial year.
 

The filing is mandatory. In the case of acquisitions, the responsibility to file the notification lies on the acquirer. In the case of a merger or an amalgamation, all the parties are jointly required to file the notification.
 

There is no deadline to file in India. The Competition Act requires filing to be made any time after the following ‘trigger events’: 

• in the case of a merger or amalgamation, the final board resolution approving the merger or amalgamation; or 
• in other cases, the execution of any agreement or other document or public announcement made in terms of the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 2011.

Specific rules apply to acquisitions, share subscriptions or financing facilities entered into by public financial institutions, registered foreign institutional investors, banks or registered venture capital funds, pursuant to any covenant of a loan agreement or an existing investment agreement. These do not need to be notified in advance to the CCI; a notification using the prescribed Form III must be filed with the CCI within seven days of completion.
 

The merger control regime in India is suspensory. Notifiable combinations cannot be consummated until merger clearance has been obtained, or a review period of 210 calendar days has passed, whichever is earlier. The suspensory effect extends to exempt steps of interconnected transactions as well as to the closing of global transactions (even if the Indian leg has not been consummated). 

The Green Channel mechanism, introduced in August 2019, can be optionally used for notifiable combinations where there is no horizontal overlap, no vertical relationship and no complementarity of the parties’ products or services. Upon receipt of an acknowledgment of a notification filed under the Green Channel, the transaction will be deemed approved.

Acquisitions, share subscriptions or financing facilities entered into by public financial institutions, registered foreign institutional investors, banks or registered venture capital funds, pursuant to any covenant of a loan agreement or an existing investment agreement, do not need to be notified before completion but must be notified (using Form III) within seven days of completion.

There are three forms.

Form I is used for short-form notifications, including notifications made through the Green Channel. Notifications are ordinarily to be filed in Form I and in accordance with the guidance notes issued by the CCI. Despite recent rationalization of the Form, completing it can be quite daunting. Notifying parties have to provide a detailed description of the proposed combination as well as details of the activities of the parties, including information on any horizontal overlaps, vertical relationships and complementary activities. Where these exist, information must be provided on the relevant market/s (including plausible alternative relevant markets), together with market shares and details of competitors, customers and suppliers. Parties also have to file documents including transaction documents, organizational charts, financial statements and third-party market reports.

Form II is used for long-form notifications. The Regulations “recommend” that Form II be filed for combinations where: (a) the parties are competitors and have a combined market share in the same market of more than 15 percent, or (b) the parties are active in vertically linked markets and the combined or individual market share in any of these markets is greater than 25 percent. Although the parties remain free to file the merger notification in Form I, there is the risk that the CCI will, later on, require the parties to resubmit using Form II which will result in a delay. Form II requires parties to provide extensive information – far more than that required for the equivalent notifications under the EU Merger Regulation or the US Hart-Scott-Rodino Act. In addition to the information provided in Form I, parties must also submit detailed financial information, information on shareholders and levels of concentration, as well as details of the market such as entry/exit barriers, imports and exports, pipeline products, transport costs, and the parties’ involvement in research and development. 

Form III is required for combinations caught by the “financial institutions” exemption under Section 6(4) of the Competition Act. This is a post-completion form that must be filed within seven days of an acquisition, share subscription or financing facility entered into by a public financial institution, registered foreign institutional investor, bank or registered venture capital fund, under a covenant in a loan agreement or an investment agreement. 

Yes, filing fees must be paid by the parties along with the notification, depending on the form that is being filed by the parties. The filing fees are as follows:

• Form I - INR 2 million
• Form II - INR 6.5 million 
• Form III - No fee payable
   

The merger review process by the CCI is a two-phase process.

Phase I: On receipt of a notification, the CCI must, within 30 working days, form a prima facie opinion on whether the combination will have an AAEC within the relevant market in India. This may be extended by up to 15 working days (i.e., a maximum of 45 working days in total) if the CCI reaches out to third parties or statutory/government authorities. The clock will stop for the provision of additional information to the CCI or the clearing of defects. 
The parties may propose “modifications” to the combination in Phase I to satisfy the CCI that it will not cause an AAEC. If so, the CCI will have an additional period of up to 15 calendar days to form its prima facie opinion. 
If the CCI is satisfied that the combination does not cause or is likely to cause an AAEC or that its concerns can be addressed through remedies or modifications offered by the parties, it will clear the combination at the end of Phase I. 

Phase II: Most cases are addressed in Phase I. To date, only eight cases have moved to Phase II. If at the end of Phase I, the CCI forms a prima facie opinion that a combination is likely to cause, or has caused, an AAEC within the relevant market in India, it shall issue a show-cause notice 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. The parties may offer voluntary modifications after the issue of a show-cause notice and the CCI can approve the combination on this basis.

If the CCI decides to proceed, it will direct the Director-General to conduct a detailed investigation or carry out its own investigation. The parties must within 10 working days publish details of the combination, inviting comments, in leading daily newspapers, on their websites and on the CCI’s website. 

Once comments are received from the public or stakeholders, the CCI may request further information or seek clarifications from the parties. It may also invite any person or member of the public affected or likely to be affected by the combination to file their written objections. The CCI may then call for additional information from the parties to the combination. The CCI will then review the transaction and arrive at its final determination, including proposing remedies to the parties where it is of the view that the transaction has caused or is likely to cause an AAEC. The CCI will pass an order approving, prohibiting or directing modifications to the combination.

The CCI has up to 210 calendar days from the date of notification to approve or prohibit a notified combination. Periods taken in assessing the validity of the notification, responding to formal requests for information and in respect of modifications are excluded from this 210 day period.

Where the Green Channel route is used, the combination will be deemed to be approved upon receipt of an acknowledgment by the CCI of the notification. Otherwise, there are no provisions to speed up the review timetable. Parties who wish to gain early clearance should comply promptly with all information requests. In practice, CCI clearance can take anywhere between 60 and 90 calendar days for a no-issues transaction. Combinations with substantial overlaps or raising other potential competition concerns can take significantly longer. 

Section 6(1) of the Competition Act prohibits any combination which causes or is likely to cause an AAEC in India. Section 20(4) of the Competition Act sets out a list of factors all or any of which shall be taken into account by the CCI while determining whether a transaction will result in an AAEC. These factors are:

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

No combination has yet been prohibited by the CCI. Most of the notifications filed so far have been cleared unconditionally by the CCI in the Phase I investigation on account of no/insignificant horizontal overlaps or vertical relationships, no change in control or the competitive nature of the market (shown by sufficient competitors in the market, new/potential market entrants, countervailing buyer power, low market shares, etc.). Where AAEC concerns have been identified, these have been addressed by modifications (see below).

Under Section 31 of the Competition Act, the CCI has the power to take the following decisions in relation to a notified combination:

• approve the combination if it is of the opinion that it does not, or is not likely to, have an AAEC; or
• prohibit the combination if it is of the opinion that it has, or is likely to have, an AAEC; or
• direct modifications to the combination if it is of the opinion that it has or is likely to have, an AAEC but such adverse effect can be eliminated by suitable modifications to the combination.

Yes. The Regulations allow the parties to the combination to propose commitments, referred to as “modifications”, to the combination  Phase and in response to any show-cause notice, in order to satisfy the CCI that the combination will not cause an AAEC. If the CCI agrees with the proposed modifications, it will approve the combination.

During the Phase II investigation, the CCI itself can propose modifications. The Competition Act and Regulations set out in some detail the process for agreeing on modifications in Phase II. After the CCI has proposed the modification, the parties may accept the modification or propose amendments, which may, in turn, be accepted by the CCI. If the CCI rejects the proposed amendments, the parties may agree to the CCI’s original proposal; if they do not do so, the combination will be prohibited.

Sanctions for not filing: 

Parties failing to notify a combination are liable under Section 43A of the Competition Act to a penalty up to 1 percent of the total turnover or value of assets, whichever is higher, of the combination.

There is no time limit for imposing sanctions for not filing. In addition, the CCI has the power to investigate a combination which has not been notified for up to one year after its consummation (see below). 

The Regulations provide that, where the ultimate intended effect of the Combination consists of a number of interlinked steps or small individual transactions which are interconnected, even where one or more of these transactions would, on a stand-alone basis, have been exempt from filing a notification, all such transactions should be filed as one single notice. The Regulations also provide that the requirement to notify must be assessed with respect to the “substance of the transaction” and any structural arrangements which have the effect of avoiding a filing requirement will be disregarded by the CCI.

Incorrect/incomplete notification:

The CCI can invalidate a notification where it is incomplete and not in conformity with the Regulations. Before doing so, it may give the parties an opportunity of being heard. The CCI may require the parties to file afresh, which will result in resetting the review clock. The parties themselves may request withdrawal and re-filing of the notification form during Phase I.

A party to a combination who makes a false statement or omits a material particular in the notification form is liable to a penalty of between INR 500,000 and INR 10 million.

Section 6(1) of the Competition Act provides that a combination that causes or is likely to cause an AAEC within the relevant market in India is void. In such a case, the CCI has the power to seek to unscramble the combination, though this has not happened to date.

Implementation of a combination before clearance can result in a penalty of up to 1 percent of the total turnover or value of assets, whichever is higher, of the combination. Gun jumping is defined broadly to cover any arrangement affecting the ability of the parties to compete, including completion of any leg of the transaction, payment of all or part of the consideration (even in escrow) and any coordination between the parties. The CCI will look not only at the conduct of the parties but also at the contractual documentation to see whether the competitiveness of the parties is actually or potentially affected.

There has, to date, been no order prohibiting a combination. A person failing, without reasonable cause, to comply with a prohibition order is punishable with a fine of up to INR 100,000 for each day of non-compliance, to a maximum of INR 100 million. A person failing to comply with the order, or failing to pay the fine, may also be subject to criminal penalties of up to three years’ imprisonment and/or a fine of up to INR 250 million. Compensation for loss or damage suffered as a result of the breach of an order may also be awarded by the NCLAT.

There is no residual jurisdiction under the merger control provisions of the Competition Act to review or challenge mergers or acquisitions which are not notifiable. 

However, where appropriate, an investigation can be initiated under Section 3 of the Competition Act prohibiting anti-competitive agreements and/or Section 4 of the Competition Act prohibiting abuse of dominance. This has so far not happened in relation to non-notifiable mergers or acquisitions.

Under Section 20(1) of the Competition Act, the CCI may, upon its own knowledge or information relating to a combination, inquire into whether it has caused or is likely to cause an AAEC in the relevant market in India. Such an inquiry can be initiated only within one year of the combination coming into effect.

Where the CCI decides to commence an inquiry, it may direct the parties to file a notification in Form I or II, within 30 days of receipt of such communication from the CCI. 

The CCI can also initiate proceedings under Section 43A of the Competition Act against the parties for failing to notify the transaction under Section 6(2) of the Competition Act and impose penalties of up to 1 percent of the total turnover or value of assets, whichever is higher, of the Combination. 

Since the merger control provisions came into force in June 2011, no combination has been blocked by the CCI. Most notifications have been cleared without modifications in Phase I. Where there have been competition concerns, the CCI has accepted appropriate modifications, involving structural and/or behavioral remedies. It has generally shown a flexible attitude and is prepared to consider the parties’ proposals on modifications.

The CCI has shown itself responsive to business needs and has introduced various amendments, clarifications, guidance notes and a DIY “toolkit” for notifications. It has introduced a Green Channel for the rapid clearance of combinations where there is no horizontal overlap, no vertical relationship and no complementarity of the parties’ products and services. These changes are in line with the Indian Government’s objective of ease of doing business in India.

The review process remains quite challenging. The notification forms are quite onerous, even for straightforward transactions. The CCI frequently resorts to formal requests for information, which “stop the clock” and can result in a delay.

The CCI increasingly acts on suspected cases of failure to notify and gun-jumping. It scans the media to see if there are transactions that may have had to be notified. It has taken an expansive approach to gun-jumping and, even in the absence of full/partial implementation or coordination between the parties, the parties to a transaction need to be sure that provisions in deal documentation do not actually or potentially prejudice full competition between the parties pending clearance. 

Pre-filing consultations: The CCI allows parties to undertake informal and verbal consultations with CCI staff before notifications. Such pre-filing consultations ("PFCs") are intended to help the parties identify the information required for filing a complete and correct notification and help in facilitating a more effective review process. The PFCs can cover procedural as well as substantive issues, and they enable the case team and the parties to identify key issues and possible competition concerns. A party seeking consultation on substantive issues is advised to prepare and submit a draft notice along with the key issues regarding which the parties seek consultation. Parties are encouraged to consult with the CCI as early as possible, even in seemingly non-problematic cases. Such consultations are oral, informal and non-binding. They are confidential and are without prejudice to the CCI’s assessment on receipt of the formal notice. 
Reform: The July 2019 Report of the Competition Law Review Committee made a number of recommendations in relation to merger control, including the creation of a Green Channel, the use of a deal value test to catch smaller sensitive transactions and the dilution of standstill obligations in the case of public bids and hostile takeovers.  The Green Channel has already been introduced. Other changes may be made in the near future. In February 2020, the Government of India launched a public consultation on a draft Competition Amendment Bill which, if proceeded with, may result in significant changes to the current regime. This Bill has yet to be introduced in the Indian Parliament.