Introduction
Pursuance to the international best practice(s), the Competition Commission of India (CCI) has introduced a framework for informal and verbal consultation in relation to a proposed combination with case team /staff of the CCI prior to filing of notice for a proposed combination in Form I/Form II as the case may be in terms of sub section (2) of section 6 of the Competition Act, 2002 (“Act”) read with regulations 5 and 5A of Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Regulations, 2011 (“Combination Regulations”).
Guidance note on Pre-Filing Consultancy
Pre-Filing Consultancy is a process which allows a parties involved in a proposed combination to seek guidance of the Commission before filing a notice for such proposed combination. The parties filing the application for pre-filing consultancy are required to provide all the necessary documents, records, information, etc in relation to the proposed combination so as to seek the view of the commission.
While it is the sole discretion of the parties to the proposed combination to decide whether and when to engage in informal discussions with the staff of the CCI in relation to the proposed transaction, however they are encouraged to consult as early as possible.
The Pre-filing consultation will help the parties to the proposed combination to identify the information required to file a complete and correct Form I/II/III.
Pre-Filing Consultancy has the following benefits:
1. It provided an opportunity for frank and open discussion and to know each other’s point of views, enhancing transparency;
2. It facilitates more effective and efficient review process;
- It helps in enabling the Staff/case team of the CCI to more focus on assessment, minimize requests for additional information and completing review in a timely manner;
1. It provides an opportunity to the Staff/case team of the CCI and parties to identify possible competition concerns and key issues to the proposed combination;
2. It helps in ensuring that forms are complete so that possible invalidations are avoided to the a possible extent; and
3. It helps in ensuring that the proposed combination is in compliance with the relevant provisions of the Act and rules and regulations made thereunder.
The benefits are largely dependent upon the willingness of the parties’ to the proposed combination to engage in complete and frank communications with the staff / case team of the CCI, and to participate in the process by furnishing the required information.
Consultation with regard to Section 5 and 6 of the Act
The parties to the proposed combination seeking consultation in relation to the interpretation of Sections 5 and 6 of the Competition Act, 2002 or other relevant provisions of Combination Regulations made thereunder, may file a application for consultation along with the required details regarding the proposed transaction including:
(a) Structure and scope of the proposed transaction;
(b) Issues regarding which the parties seek consultation;
(c) the relevant/sector market in which the parties operate; and
(d) any other details which according to the parties may be pertinent for meaningful consultation.
The parties to the proposed combination seeking consultation in relation to substantive issues i.e. information in terms of Form I/II/III, are advised to prepare the draft and submit draft notice in the respective Form along with the following:
(a) the key issues regarding which the parties seek consultation; and
(b) any other details which according to the parties may be pertinent for a meaningful consultation.
The parties to the proposed combination may avail the assistance of the staff/case team of the CCI to assist in completing the relevant form for filing. The presence of a representatives who have good understanding of the relevant market is strongly recommended in the pre-filing consultations.
The parties to the proposed combination seeking pre-filing consultation may send an email to: cci-consult@nic.in with the subject “Request for pre-filing consultation”.
Whenever clarification is sought regarding Green Channel, the subject shall be mentioned as “Green Channel – Request for pre-filing consultation”. Further Parties may also meet the staff / case team of the CCI between 10 a.m. and 12 p.m. from Monday to Friday, at the office of the Commission.
The staff/ case team of the CCI may not respond to requests which are general in nature or which involve hypothetical scenarios or which does not describe sufficiently the factual situation.
The guidance would be given as an additional assistance facility, and would not be deemed to be the opinion of the Commission in any manner, whatsoever, and such guidance will not be binding on the Commission. The consultation will be held in strict confidence and without prejudice to the assessment of the case on receipt of the formal notice.
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