Competition Commission of India amends the Combination Regulations vide notification dated 9th October 2018

The Competition Commission of India (CCI), in continuation of its efforts towards simplifying and providing greater clarity on the application of the combination provisions of the Act and the Combination Regulations, has further amended the Combination Regulations on 09th October 2018. This amendment inter alia provide certainty & transparency and expedites faster disposal of combination cases before CCI.

The provisions of the Competition Act, 2002 (“Act”) relating to the regulation of combinations as well as the Combination Regulations have been in force with effect from 1st June 2011.

A key change brought about by the present amendments is that the parties to combinations can now submit remedies voluntarily in response to the notice issued under Section 29(1) of the Act. If such remedies are considered sufficient to address the perceived competition harm, the combination can be approved. This amendment is expected to expedite disposal of such combination cases.

In another significant amendment, where the notice is found to exhibit significant information gaps, parties to combinations are allowed to withdraw the notice and refile the same. With this amendment, the parties could address the deficiencies without facing an invalidation by CCI. Further, fee already paid in respect of such notice shall be adjusted against the fee payable in respect of new notice, if the refiling is done within a period of 3 months.

Apart from these, certain consequential and other clarificatory changes have also been made in the Combination Regulations.

THE COMPETITION COMMISSION OF INDIA

NOTIFICATION

New Delhi, the 9th October, 2018

The Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Amendment Regulations, 2018

F.No.CCI/CD/Amend/Comb.Regl./2018.—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, 2018.

(2) They shall come into force on the date of their publication in the Official Gazette.

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

(1) in regulation 2, in sub-regulation (3), for the words, figures and brackets “ Companies Act, 1956 (1 of 1956)”, the following shall be substituted, namely:-

“Companies Act, 2013 (18 of 2013)”;

(2) in regulation 5,-

(a) in proviso to sub-regulation (4), after the words “period provided in”, the following shall be inserted, namely:-

“sub-section (2A) of section 6 of the Act,”;

(b) in proviso to sub-regulation (6), after the words “period provided in”, the following shall be inserted, namely:-

“sub-section (2A) of section 6 of the Act,”;

(c) in sub-regulation (7),

(i) in clause (c), the words and figures “registered under the Companies Act, 1956” shall be omitted;

(ii) in clause (d), the words, brackets and figures “or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956)” shall be omitted;

(3) in regulation 9, in proviso to sub-regulation (2), after the words “period provided in”, the following shall be inserted, namely:-

“sub-section (2A) of section 6 of the Act,”;

(4) in regulation 14,-

(a) in sub-regulation (2A),-

(i) for the words “seven days”, the following words shall be substituted, namely:-

“seven working days”;

(ii) in the second proviso, after the words “period specified in”, the following shall be inserted, namely:-

“sub-section (2A) of section 6 of the Act,”;

(b) in the proviso to sub-regulation (5), after the words “period provided in”, the following shall be inserted, namely:-

“sub-section (2A) of section 6 of the Act,”;

(5) in regulation 16, in sub-regulation (5), for the word “seven days”, the following words shall be substituted, namely:-

“seven working days”;

(6) after regulation 16, the following regulation shall be inserted, namely:-

“16A. Withdrawal and refiling of notice.-

(1) At any time prior to the issuance of notice under sub-section (1) of section 29 of the Act, the Commission may on the request of the parties to the combination allow withdrawal and refiling of the notice given under regulation 5 or regulation 8 of these regulations.

(2) In case of withdrawal of notice under sub-regulation (1), the fee already paid in respect of such notice shall be adjusted against the fee payable in respect of new notice given by the parties to the combination provided the new notice is given within three months from the date of withdrawal.”;

(7) in regulation 19, for sub-regulation (2), the following sub-regulation shall be substituted, namely:-

“(2) Before the Commission forming an opinion under sub-section (1) of section 29 of the Act, the parties to the combination may offer modification to the combination and on that basis, the Commission may approve the proposed combination under sub-section (1) of section 31 of the Act:

Provided that where modification is offered by the parties to the combination, the additional time, not exceeding fifteen days, needed for evaluation of the offered modification, shall be excluded from the period provided in sub-regulation (1) of this regulation, sub-section (2A) of section 6 of the Act and sub-section (11) of section 31 of the Act.”;

(8) in regulation 25, after sub-regulation (1), the following sub-regulation shall be inserted, namely:-

“(1A) Along with their response to the notice issued under sub-section (1) of section 29 of the Act, the parties to the combination may offer modification to address the prima facie concerns in the said notice and on that basis, the Commission may approve the proposed combination under sub-section (1) of section 31 of the Act:

Provided that in such a case, the additional time, not exceeding fifteen days, needed for evaluation of the modification offered, shall be excluded from the period provided in sub-section (2A) of section 6 of the Act, sub-section (2) of section 29 of the Act and subsection (11) of section 31 of the Act.”;

(9) in regulation 27, for sub-regulation (1), the following sub-regulation shall be substituted, namely:-

“(1) Where the Commission is of the opinion that the implementation of the modifications to the proposed combination needs supervision, it may appoint agencies to oversee such implementation, on such terms and conditions as may be determined by the Commission.”.

SMITA JHINGRAN, Secy.
[ADVT.-III/4/Exty./301/18]

Note: Principal Regulations were published vide Notification No. F. No. 1-1/ Combination Regulations/2011- 12/CD/CCI in the Gazette of India, Extraordinary, Part III, Section 4, dated the 11th 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 23rd 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./2012/CD/CCI in the Gazette of India, Extraordinary, Part III, Section 4, dated the 4th April, 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 28th 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 01st July, 2015; and

(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 07th January, 2016.

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