CCI (Procedure in regard to transaction of business relating to combinations) Amendment Regulations, 2019

THE COMPETITION COMMISSION OF INDIA

NOTIFICATION

New Delhi, the 13th August, 2019

The Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Amendment Regulations, 2019

F.No. CCI/CD/Amend/Comb. Regl./2019.—In exercise of the powers conferred by section 64 of the Competition Act, 2002 (12 of 2003), the Competition Commission of India hereby makes the following regulations further to amend the Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Regulations, 2011, namely:—

1. Short title and commencement.—

(1) These regulations may be called the Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Amendment Regulations, 2019.

(2) They shall come into force on the 15^th day of August, 2019.

2. In the Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Regulations, 2011,—

(1) after regulation 5, the following regulation shall be inserted, namely:-

“5A. Notice for approval of combinations under Green Channel.-

(1) For the category of combination mentioned in Schedule III, the parties to such combination may, at their option, give notice in Form I pursuant to regulation 5 along with the declaration specified in Schedule IV.

(2) Upon filing of a notice under sub-regulation (1) and acknowledgement thereof, the proposed combination shall be deemed to have been approved by the Commission under sub-section (1) of section 31 of the Act:

Provided that where the Commission finds that the combination does not fall under Schedule III and/or the declaration filed pursuant to sub-regulation (1) is incorrect, the notice given and the approval granted under this regulation shall be void ab initio and the Commission shall deal with the combination in accordance with the provisions contained in the Act:

Provided further that the Commission shall give to the parties to the combination an opportunity of being heard before arriving at a finding that the combination does not fall under Schedule III and/or the declaration filed pursuant to sub-regulation (1) is incorrect.”;

(2) in regulation 13,-

(a) for sub-regulation (1A), the following sub-regulation shall be substituted, namely: –

“(1A) A summary of the combination, not containing any confidential information, in not more than 1000 words, comprising details regarding: (a) name of the parties to the combination; (b) the nature and purpose of the combination; (c) the products, services and business(es) of the parties to the combination; and (d) the respective markets in which the parties to the combination operate, shall be filed for the purpose of publishing the same on the website of the Commission.”;

(b) sub-regulation (1B) shall be omitted;

(3) in Schedule II, for Form I, the following Form shall be substituted, namely:-

“FORM I

[See Regulation 5(2)]

Registration No: (to be assigned by the Competition Commission of India)

Information required to be filled in by the notifying party(ies)

Part I: Basic information

1. Information about each of the party to the combination:

1.1. Legal names of parties to the combination and their role:

1.2. Legal status of the parties to the combination (Company/Firm/LLP/Trust etc.):

1.3. Jurisdiction of incorporation/formation:

1.4. Registration number (if applicable):

1.5. Complete registered address / principal business address:

1.6. Name of the person signing on behalf of the parties to the combination and his contact details (email address, telephone number, mobile number, including country/city/area code):

1.7. Complete address and contact details in India:

1.8. Website address:

1.9. Relevant 4-digit National Industrial Classification of the activities of the parties to the combination:

1.10. Date of pre-filing consultation, if any:

Part II: Payment of fee

[See clause (a) of Regulation 11]

2. Particulars of fee deposited.

Part III: Authorisation regarding communication

3. Name, complete address and contact details of Individual(s) in India who is authorised to receiven communication (s) on behalf of the notifying party(ies).

Part IV: Meeting the thresholds
[See section 5 of the Act]

4. Details of assets and turnover of the parties to the combination in the format given below:

Part V: Description of the combination

5. Describe the combination by providing information regarding the following:

5.1. Scope of the combination notified pursuant to sub-section (2) of section 6 of the Act (with reference to relevant clause under the agreement(s), as applicable):

5.1.1. Details of acquisition or merger or amalgamation, as the case may be, with reference to relevant clause of section 5;

5.1.2. Any other transaction(s) that is/are inter-connected, in terms of sub-regulation (4) and / or (5) of regulation 9 of these regulations; and

5.1.3. Right(s) acquired or arising out of or in connection with the transaction(s) referred to at 5.1.1 and 5.1.2 above.

5.2. Step(s) to give effect to the combination, along with timelines for each step(s) of the combination.

5.3. Economic and strategic purpose (including business objective and rationale for each of the parties to the combination and the manner in which they are intended to be achieved) of the combination.

5.4. Value of the proposed combination.

5.5. Foreign investment as a result of the combination (FDI, FPI, etc., if any, in INR) and country(ies) of origin.

5.6. Filing requirements and its status in jurisdictions other than India.

5.7. Non-compete obligation, if any: Duration, scope in terms of persons, product(s)/ service(s) and territory (ies) and corresponding justification.

5.8. Any other relevant information related to the combination.

Part VI: Activities of parties to the combination and sector overview

6. Details about each of the parties to the combination:

6.1. Name of the group to which the parties to the combination belong.

6.2. For each of the parties to the combination, details regarding the following:

6.2.1. Entities in India and the presence in India (for example, sales office, factory, liaison office, branch office, franchise or through any entity from outside India, etc.);

6.2.2. Trade name(s), business name(s) and the brand name(s) used in India; and 6.2.3. Overview of activities worldwide and in India, as applicable.

6.3. List/details of the products (manufactured, supplied, distributed, and/or sold) and/or services provided by the parties to the combination.

6.4. Horizontal Overlaps – State as to whether the parties to the combination and/or their respective group entities, directly or indirectly, produce/provide similar or identical or substitutable products or services, considering all plausible alternative(s):

Yes

No

If the answer is yes, furnish the following information [information shall be furnished for each of the plausible alternative relevant market]:

6.4.1. Details of the overlapping products/ services and the relevant product and relevant geographic market, considering all plausible alternative(s), alongwith explanation for accepting and rejecting each of the plausible alternative of relevant product and relevant geographic market;

6.4.2. Estimate, indicating the relevant source and the basis of estimate, the total size of the market for last three years, in terms of value of sales (in rupees) and volume (units);

6.4.3. Sales in value (in rupees) and volume (units) along with an estimate of the market share(s) of each of the parties to the combination (including their relevant group entities), for the last three years; and

6.4.4. Name and contact details of the five largest competitors (along with their market shares for last three years), customers and suppliers.

6.5. Vertical and Complementary Activities : State as to whether any of the parties to the combination and/or their respective group entities, directly or indirectly, are engaged in: any activity relating to the production, supply, distribution, storage, sale and service or trade in products or provision of services which is at different stages or levels of the production chain in which any other party to the combination is involved, considering all plausible alternative(s); and/or any complementary activities:

Yes

No

If the answer is yes, furnish the following information [information shall be furnished for each the plausible alternative relevant market]:

6.5.1. Details of the upstream and downstream activities or the complementary activities, as the case may be, and the relevant product and relevant geographic markets, considering all plausible alternative(s), along with explanation for accepting and rejecting each of the plausible alternative of relevant product and relevant geographic market;

6.5.2. Market size for the last three years for relevant product and/or services;

6.5.3. Market share of each of the parties to the combination (including their relevant group entities) for relevant product and/or services for the last three years;

6.5.4. Market share of five largest competitors for relevant product and services for the last three years; and

6.5.5. Existing supply arrangements between the parties to the combination along with volume and value of transactions, during the previous financial year and percentage of such sales/consumption of the respective parties in relation to the total sales/consumption in each of the market(s).

6.6. Whether any of the parties to the combination or any of their group entities has direct or indirect shareholding and/or control over another enterprise(s) engaged in: (a) production, distribution or trading of similar/ identical/ substitutable products or provision of similar/ identical/ substitutable services; and/or (b) any activity relating to the production, supply, distribution, storage, sale and service or trade in products or provision of services which is at different stages or levels of the production chain in which any other party to the combination is involved; and/or (c) complementary activities. If yes, provide details and necessary information as per Item 6.1 to 6.5 above.

6.7. Brief overview of the sector(s) in which the parties to the combination operate. If parties to the combination are engaged in identical, similar, supplementary or complementary businesses, also provide a brief description of the market structure; regulatory framework; recent entry and exit; and any other relevant information, relating to concerned businesses.

6.8. If any of the parties to the combination was a party to any proceeding before the Commission under or pursuance to any provision of the Act or before other competition authority(ies), during the last five years, provide details of said proceeding(s).

Part VII: Green Channel
[See Regulation 5A]

7. Whether the notice for the proposed combination is under Green Channel:

Yes

No

Part VIII: Attachments

8. Attach the following documents:

8.1. Authorisation for signing the notice (refer item 1.6 above).

8.2. Acknowledgement for payment of fees to the Commission (refer item 2 above).

8.3. Authorisation for receiving communication (refer item 3 above).

8.4. Annual report of the parties to the combination, for the preceding financial year.

8.5. Summary of the combination in terms of sub-regulation (1A) of regulation 13 of these regulations.

8.6. Chart depicting shareholding/extent of ownership and voting right (if different from ownership pattern) along with details of control, prior to and after the combination, of: (a) the parties to the combination starting from their ultimate parent entity and controlling shareholder(s); and (b) for the enterprises, whose structure, ownership and control will be directly or indirectly affected by the combination.

8.7. Copy of approval or agreement/documents as referred to in sub-section (2) of section 6read with regulation 5 of these regulations.

8.8. Documents, material (including reports, studies, plan, latest version of other documents), etc.considered by and/or presented to the board of directors and/or key managerial person of the parties to the combination and/or their relevant group entities, in relation to the proposed combination.

8.9. If the notice for the proposed combination is under Green Channel, declaration in terms of Schedule IV.

DECLARATION

The notifying party confirms that it has furnished all the information and documents as required in Form-I, read with notes thereto.

The notifying party declares and confirms that all information given in this Form and all pages annexed hereto are true, correct and complete to the best of its knowledge and belief, and that all estimates are identified as such and are its best estimates based on the underlying facts.

Signed by or on behalf of the notifying party

Signature(s)
Name (in block letters):
Designation:
Date:-________

[In case there are more than one notifying parties, each party may use the same format.]”;

(4) after Schedule II, the following Schedules shall be inserted, namely:-

“Schedule III

[See sub-regulation (1) of Regulation 5A]

Considering all plausible alternative market definitions, the parties to the combination, their respective group entities and/or any entity in which they, directly or indirectly, hold shares and/or control:-

(a) do not produce/provide similar or identical or substitutable product(s) or service(s);

(b) are not engaged in any activity relating to production, supply, distribution, storage, sale and service or trade in product(s) or provision of service(s) which are at different stage or level of production chain; and

(c) are not engaged in any activity relating to production, supply, distribution, storage, sale and service or trade in product(s) or provision of service(s) which are complementary to each other.

Schedule IV

[See Sub-Regulation (1) of Regulation 5A]

Declaration

1. The notifying party confirms that it has furnished all the information and documents as required in Form I, as specified in Schedule II.

2. The notifying party confirms that the proposed combination falls under Schedule III and is not likely to cause adverse effect on competition.

3. The notifying party confirms that it has not made any statement which is false in any material particular or knowing it to be false; or omitted to state any material particular knowing it to be material.

The notifying party understands that if any of the above statements is found to be incorrect, the notice given and the approval granted, under regulation 5A, shall be void ab initio.

Signed by or on behalf of the notifying party
Signature(s)

Name (in block letters):

Designation:

Date:____

Note: In case there are more than one notifying party, each party shall file this declaration.”.

P.K. SINGH, Secy.
[Advt.-III/4/Exty./174/19]

Note: Principal regulations were published vide notification number F. No. 1-1/Combination Regulations/2011-12/CD/CCI in the Gazette of India, Extraordinary, Part III, Section 4, dated the 11^th May, 2011 and were subsequently amended by,—

(a) The Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Amendment Regulations, 2012 published vide F. No. 3-1/Amend/Comb.Regl./2012/CD/CCI in the Gazette of India, Extraordinary, Part III, Section 4, dated the 23^rd February, 2012;

(b) The Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Amendment Regulations, 2013 published vide F. No. 3-1/Amend/Comb. Regl./2013/CD/CCI in the Gazette of India, Extraordinary, Part III, Section 4, dated the 4^thApril, 2013;

(c) The Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Amendment Regulations, 2014 published vide F. No. CCI/CD/Amend/Comb.Regl./2014 in the Gazette of India, Extraordinary, Part III, Section 4, dated the 28^th March, 2014;

(d) The Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Amendment Regulations, 2015 published vide F. No. CCI/CD/Amend/Comb.Regl./2015 in the Gazette of India, Extraordinary, Part III, Section 4, dated the 01^st July, 2015;

(e) The Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Amendment Regulations, 2016 published vide F. No. CCI/CD/Amend/Comb.Regl./2016 in the Gazette of India, Extraordinary, Part III, Section 4, dated the 07^th January, 2016; and

(f) The Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Amendment Regulations, 2018 published vide F. No. CCI/CD/Amend/Comb.Regl./2018 in the Gazette of India, Extraordinary, Part III, Section 4, dated the 09^thOctober, 2018.