COMPETITION COMMISSION OF INDIA PROCEDURE IN REGARD TO THE TRANSACTION OF BUSINESS RELATING TO COMBINATIONS) REGULATIONS, 2011

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1 F Private Circulation COMPETITION COMMISSION OF INDIA PROCEDURE IN REGARD TO THE TRANSACTION OF BUSINESS RELATING TO COMBINATIONS) REGULATIONS, The Competition Commission of ( CCI ) has issued the Competition Commission of (Procedure in regard to the transaction of business relating to combinations) Regulations, 2011 (the Regulations ), which will come into effect from 1 June The Regulations address in detail the manner in which notices of Combinations are required to be submitted to the CCI, the contents of these notices, the fmats in which the notices are required to be submitted, the manner in which such a notice will be dealt with by the CCI and the implementation of ders of the CCI. With this publication, the merger control regime will finally become effective in. 2. Combination is defined in Section 5 of the Competition Act, 2002 (the Act ) which states any acquisition, merger amalgamation would be referred to as a Combination if such acquisition, merger amalgamation exceeds the threshold limits specified in the section. (Please see the Table on Page 4 f the applicable threshold limits f transactions to be considered as Combinations). 3. On and after June 1, 2011, any company which proposes to enter into a Combination, is required to give notice of such Combination to the CCI. Notice shall be in the fmat specified in the Regulations. Even in the case where a transaction is contemplated by way of a number steps, individual smaller transactions, a single notice describing the entire transaction can be filed. 4. Even if the parties to a transaction do not notify the CCI, the CCI has the power, on its own knowledge infmation relating to the Combination, to inquire whether such a Combination can cause an appreciable adverse effect on competition. In such case, the CCI can, without prejudice to its right to impose penalties under the Act, require the parties to submit such infmation as the CCI requires f its examination. 5. As per the Regulations it is mandaty f the CCI to fm a prima facie opinion whether the proposed combination is likely to cause appreciable adverse effect on the competition in the relevant market in within 30 days of the notice. When the opinion of the CCI is that such combination is likely to have an appreciable adverse effect on competition then it is to be conveyed to the parties within 4 wking days. The CCI can require the parties to publish the details of this prima-facie finding. 6. The Act prescribes a time period of 210 days during which, if the parties do not receive an der from the CCI, the parties can go ahead with the transaction. However the CCI would endeavour CCI to pass an der issue directions within 180 days of receipt of notice. This time period commences from the date the parties file the notice with the CCI. Any time period required f furnishing additional infmation required by the CCI will be excluded from the 210 day period. 1

2 F Private Circulation 7. If the CCI deems it necessary, they can give the parties the right to be heard by appearing befe the CCI. 8. Parties may request the CCI to maintain confidentiality in relation to infmation documents which have been submitted to it during investigations. Such a request should be accompanies by reasons and justifications on why such documents should be kept confidential. 9. Certain exclusions have been specified in the Regulations based on the date of the transaction. No notice is required to be filed (and therefe the merger control requirements will not apply) if: (i) (ii) F mergers and acquisitions referred to in Section 5(c) of the Act (see Row 3 of the Table), if the proposal has been approved by the board of directs of the company concerned befe 1 June 2011; and F acquisitions referred to in Section 5(a) of the Act (see Row 1 of the Table) acquisition of control referred to in Section 5(b) of the Act (see Roe 2 of the Table), where binding document(s) are executed befe 1 June Upon completion of its inquiry, the CCI can: (i) (ii) (iii) pass an der prohibiting the combination if it reaches the conclusion that such combination has, is likely to have, an appreciable adverse effect on competition in the relevant market in ; pass an der approving the combination if it reaches the conclusion that such combination does not, is not likely to have, an appreciable adverse effect on competition in the relevant market in ; pass an der approving the combination with modifications conditions. CCI can appoint an independent agency to oversee the implementation of the modifications and conditions. CCI can also pass appropriate directions in case the parties fail to implement modifications. 11. An appeal against the decision of the CCI lies with the Competition Appellate Tribunal. The appeal has to be made within 60 days from the date of the CCI der. 12. Schedule I of the Regulations specifies categies of combinations which are not likely to cause appreciable effect on competition in ; therefe a notice f approval by CCI in regard of such combinations specified need not be filed. These combinations specified in schedule I include: (i) Direct indirect acquisition of up to fifteen percent (15%) of the shares voting rights of a company, which does not result in acquisition of control of the target company. 2

3 F Private Circulation (ii) (iii) (iv) (v) (vi) (vii) An acquisition of shares voting rights, where the acquirer already owns 50% me of the shares voting rights in the target, except in the cases where the transaction results in transfer from joint control to sole control. An acquisition of assets, not directly related to the business activity of the acquirer made solely as an investment in the dinary course of business, not leading to control of the enterprise whose assets are being acquired, except in the case where the assets acquired represent a substantial business operations f a particular product service of the enterprise of which assets are being acquired. An acquisition of stock in-trade, raw materials, stes and spares in the dinary course of business. An acquisition of shares voting rights pursuant to a bonus issue stock splits consolidation of face value of shares subscription to rights issue to the extent of their entitled proption, not leading to acquisition of control, etc. An acquisition of control shares voting rights assets by one person enterprise of another person enterprise within the same group. Any combination taking place entirely outside and having no significant local nexus and effect on the markets in. 3

4 F Private Circulation Table 1 Transactions considered as Combinations under the Act In In Outside (in aggregate) Assets Turnover Assets Turnover 1. Acquisition Acquirer and acquired enterprise jointly have Me than Rs 1500 Cres 337.5million) Me than Rs 4500 Cres Me than Cres Me than Cres US Group to which the acquired enterprise would belong after the acquisition, jointly have would jointly have: Me than Rs 6000 Cres Me than Rs Cres 4 Me than Cres Me than Cres US 2. Acquisition of control over an enterprise when the acquirer already has direct indirect control over another enterprise engaged in production, distribution trading of a similar identical substitutable goods provision of a similar identical substitutable service Acquirer and the acquired enterprise, jointly have Me than Rs 1500 Cres million) Turnover me than Rs 4500 Cres Me than cres Me than 2250 million least RS 2250 Cres (Approx. US. Group, to which the enterprise whose control has been acquired, is being acquired, would belong after the Me than Rs 6000 Cres Me than Rs Cres 4 Me than 3 billion 750 Cres Me than Cres 4

5 F Private Circulation In In Outside (in aggregate) Assets Turnover Assets Turnover acquisition, jointly have would jointly have US 3 Mergers and Amalgamations Enterprise remaining after merger the enterprise created as a result of the amalgamation, have Me than Rs 1500 Cres million) Me than Rs 4500 Cres Me than 750 least RS 750 Cres Me than Cres US Group, to which the enterprise remaining after the merger the enterprise created as a result of the amalgamation, would belong after the merger the amalgamation, have would have Me than Rs 6000 Cres Me than Rs Cres 4 Me than Cres Me than Cres US 5

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