India: Competition

(Amendment) Bill 2022 signals

potential changes to merger
control regime
Sonam Mathur,, Shubhang
g Joshi and Dhruv Dikshit
TT&A

In summary
This article provides an overview of the Indian merger control regime with
a focus on major developments in 2022 and the upcoming Competition
(Amendment) Bill 2022.

Discussion points
• Enforcement trends on gun jumping
• Proposed amendments under the Competition (Amendment) Bill 2022
• Sweeping powers in regulating transactions
• Increasing prevalence of voluntary remedy discussions in Phase I

Referenced in this article

• Competition Act 2002
• Competition Commission of India (Procedure in regard to the transaction of
business relating to combinations) Regulations 2011
• Competition (Amendment) Bill 2022
• Adani Green/SB Energy
• Tata Power/WESCO; Tata Power/SOUTHCO; and Tata Power/CESU
• Premji Invest/Future Retail
• Trian Partners/Invesco
• SABIC BV/Clariant
• Amazon.com NV Investment Holdings LLC v CCI & Ors
India: merger control | TT&A

Introduction
The Indian merger control regime came into effect on 1 June 2011. It seeks to
regulate combinations that cause or are likely to cause an appreciable adverse
effect on competition (AAEC) in India. The regulatory functions are exercised by
the Competition Commission of India (CCI) in accordance with the Competition
Act 2002 (the Act) and the Competition Commission of India (Procedure in regard
to the transaction of business relating to combinations) Regulations 2011 (the
Combination Regulations), as amended. On 5 August 2022, the Competition
(Amendment) Bill 2022 (the Amendment Bill) was introduced in Parliament
and was referred to the Parliamentary Standing Committee on Finance (the
Committee) for its review. On 13 December 2022, the Committee issued its
report with certain recommendations on the Amendment Bill. Key proposals
are discussed below.

Features of regime
Any acquisition (of assets, control, shares or voting rights) of an enterprise or
merger or amalgamation of an enterprise that exceeds the financial thresholds
prescribed under section 5 of the Act amounts to a combination and is reportable
to the CCI, unless expressly exempted under the Combination Regulations or by
notifications promulgated by the government.

Mandatory and suspensory

The Indian merger control regime is mandatory and suspensory in nature. A

notifiable combination cannot be consummated without approval from the CCI.
If the CCI does not issue its final order within 210 days of receiving a notice,
the combination is deemed to be approved by the CCI. The Amendment Bill
proposes a shorter timeline of 150 days for the CCI to issue its final order on
a combination, although the Committee recommended against this proposal,
noting the difficulties highlighted by the CCI and other stakeholders with such
expedited timelines.

The Act penalises any failure of notification of a combination to the CCI or any
part-consummation of a combination prior to CCI approval (gun jumping). The
penalty for gun jumping is a fine that may reach up to 1 per cent of the total
assets or turnover (whichever is higher) of the erring party in the preceding
financial year.

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Trigger for notification

A merger notification can be made to the CCI:

• in the case of a merger or amalgamation, after the approval of the merger or

amalgamation by the board of directors of the parties to the transaction; or
• in the case of an acquisition, after the execution of any binding document
relating to such an acquisition (trigger event).

Specifically, in relation to acquisition of listed companies pursuant to an open

offer in terms of the Securities and Exchange Board of India (Substantial
Acquisition of Shares and Takeover) Regulations 2011, the public announcement
made to the Securities and Exchange Board of India would be considered the
trigger event.

Earlier, parties were obligated to notify a combination to the CCI within 30 days of
a trigger event occurring. However, the timeline for reporting combinations has
been relaxed until 2027 through a series of notifications1 and the relevant parties
can notify combinations to the CCI at any point, provided that the transaction is
consummated only post-CCI approval. In a welcome move, the Amendment Bill
proposes to amend the Act to do away with the 30-day timeline altogether.

Obligation to notify

The obligation to notify the CCI depends on the structure of the combination.
The Combination Regulations provide that, in the case of an acquisition, the
obligation to notify the combination rests upon the acquirer. In a merger or an
amalgamation, the transacting parties are required to notify the CCI jointly.

Interconnected transactions

In cases where the ultimate effect of a combination is achieved through a series

of transactions or interconnected transactions, parties must notify all such
transactions in a single notice to the CCI. If any one of such transactions is closed
prior to or without obtaining CCI approval, it would amount to gun jumping. The
CCI usually considers the subject matter of the transaction, commonality of
parties or entities to the transaction, the timing and simultaneity of negotiation,
and execution and consummation of the transactions to determine whether
transactions are interconnected.

1 Notification SO 2039(E) dated 29 June 2017 (Ministry of Corporate Affairs); Notification SO 1192(E) dated
16 March 2022 (Ministry of Corporate Affairs).

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Meaning of ‘control’

An acquisition of control over an enterprise may be notifiable to the CCI subject

to satisfaction of jurisdictional thresholds. In addition, the applicability of certain
Schedule I exemptions (see below) also depends upon the interpretation of
‘control’. Accordingly, the determination of whether a transaction results in
acquisition of control is fundamental to a merger control analysis. The term
‘control’ is defined in a circuitous manner under the Act to include ‘controlling
the affairs or the management by one or more enterprises’.2

The CCI recognises various degrees and forms of control such as controlling
interest (de jure control), de facto control and material influence. The CCI
previously assessed control as a matter of decisive influence but has now, through
its decisional practice, moved to the standard of material influence, which is
the lowest form of control. Material influence implies the presence of factors
that give an acquirer the ability to influence the affairs and management of the
target through shareholding, special rights, status and expertise of an acquirer,
board representation, and structural or financial arrangements, among other
factors.3 The Amendment Bill proposes to codify the CCI’s decisional practice
for defining the term ‘control’ to mean an ability to exercise material influence
over the management, affairs or strategic commercial decisions of a target. The
Committee further recommends that the factors to assess material influence
are clarified by the CCI through regulations.

Financial thresholds and de minimis exemption

The Act sets out eight financial thresholds (based on assets and turnover) that
consist of tests on an enterprise level and on a group level. However, in 2017, the
government introduced a de minimis exemption that exempts from notification
transactions where the target has assets of less than 3.5 billion rupees in India
or turnover of less than 10 billion rupees in India.4 The government has extended
the validity of the de minimis exemption for a period of another five years until
March 2027.5

Even if the financial thresholds are exceeded, a transaction can also benefit from
any of the exemptions set out under Schedule 1 of the Combination Regulations.

2 Explanation (a) to section 5 of the Act states that control includes:

controlling the affairs or management by— (i) one or more enterprises, either jointly or singly, or another
enterprise or group; (ii) one or more groups, either jointly or singly, over another group or enterprise’.
Explanation (b) to Section 5 of the Act defines a ‘group’ as ‘two or more enterprises which, directly or
indirectly, are in a position to— (i) exercise twenty-six per cent or more of the voting rights in the other
enterprise; or (ii) appoint more than fifty per cent of the members of the board of directors in the other
enterprise; or (iii) control the management or affairs of the other enterprise.
3 Combination Registration No. C-2015/02/246 – UltraTech Cement Limited/Jaiprakash Associates Limited
(12 March 2018).
4 Notification SO 988(E) dated 27 March 2017 (Ministry of Corporate Affairs).
5 Notification SO 1192(E) dated 16 March 2022 (Ministry of Corporate Affairs).

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In addition, the Amendment Bill proposes the introduction of deal value

thresholds that require notification of transactions with a deal size in excess
of 20 billion rupees. However, this is subject to one of the parties having
substantial business operations in India (local nexus test), the determination of
which will be based on regulations to be issued by the CCI. The proposal aims
to ensure that competitively sensitive transactions that fall below the financial
thresholds do not escape CCI scrutiny. The Committee recommends that the
deal value thresholds and the local nexus test are revisited every year by the
CCI. Separately, the Committee also recommends that certain digital companies
with a significant presence in India should be mandated to inform the CCI of all
their transactions, irrespective of the jurisdictional or deal value thresholds.6

Exemptions

Schedule 1 exemptions

The Combination Regulations exempt certain transactions, even if they fall

within the definition of ‘a combination’, from notification to the CCI as they are
ordinarily not likely to cause an AAEC in the relevant market in India.

Minority shareholder acquisitions (Item 1 exemption)

Item 1 of Schedule 1 exempts from notification an acquisition that:

• does not entitle the acquirer to hold 25 per cent or more of the total shares
(or voting rights) of a target;
• does not lead to an acquisition of control of the target; and
• is done solely as an investment or in the ordinary course of business.

A 2016 amendment to the Combination Regulations clarified that an acquisition

of less than 10 per cent shares or voting rights shall be deemed to be solely an
investment if the acquirer:

• has the ability to exercise only such rights that are exercisable by ordinary
shareholders of the target;
• is not a member on the board of directors of the target and does not have the
right or intention to nominate a board director; and
• does not intend to participate in the affairs or management of the target.

The CCI interprets the Item 1 exemption very strictly and, through its decisional
practice, has narrowed down the conditions in which the Item 1 exemption would
be applicable.

6 Anti-Competitive Practices by Big Tech Companies, 53rd Report (December 2022), Standing Committee
on Finance (Ministry of Corporate Affairs).

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Exemption for acquisition of additional shares or voting rights

The following types of acquisitions whereby the acquirer increases its existing
shareholding in the target are exempt from notification to the CCI, provided that
there is no change of control of the target:

• where an acquirer or its group that already has 25 per cent shareholding in
a target acquires an additional shareholding not exceeding 50 per cent in the
target; and
• where an acquirer or its group holds 50 per cent in the target and acquires
additional shares in the target.

Intra-group transactions

Acquisitions or mergers and amalgamations where the parties belong to the

same group and the target is not jointly controlled by enterprises outside the
same group are exempt.

Other Schedule 1 exemptions

Several other types of transactions are also exempt under Schedule 1 of the
Combination Regulations, such as:

• acquisition of assets not directly related to the business activity of the

acquirer or solely as an investment or in the ordinary course of business, not
leading to control;
• acquisition of shares or voting rights pursuant to a bonus issue, stock splits,
consolidation of face value of shares, buy-back of shares or subscription to
rights issue of shares not leading to control;
• acquisition of shares or voting rights by a securities underwriter or registered
broker of a stock exchange in the ordinary course of business; and
• acquisition by a purchaser approved by the CCI in accordance with an order
for divestment.

Exemptions pursuant to government notifications

The government has specifically excluded combinations involving loss-making

and failing banks (valid until 10 March 2025)7 and nationalised banks (valid until
29 August 2027)8 from CCI’s merger review process.

7 Notification SO 1034(E) dated 11 March 2020 (Ministry of Corporate Affairs).

8 Notification SO 2828(E) dated 30 August 2017 (Ministry of Corporate Affairs).

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Treatment of joint ventures

There is no explicit guidance in the Act or the Combination Regulations relating

to joint ventures. Section 5 of the Act covers only acquisitions, mergers and
amalgamations without making any specific mention of joint ventures. Generally
speaking and absent any transfer of assets to the joint venture by the parents,
greenfield joint ventures are not notifiable, whereas brownfield joint ventures
may require notification if financial thresholds are met. The CCI has clarified
that, if one or more enterprises transfers its assets to a joint venture company,
the formation of a joint venture is treated as a notifiable combination provided
that the financial thresholds are met.

Types of notification forms

The Combination Regulations specify three types of forms for filing. Form I (or
short-form) is typically used for filing merger notification to the CCI. However,
Form II (or long-form) is recommended in cases where the parties to the
notification are:

• competitors and have a combined market share exceeding 15 per cent; or

• vertically related and their individual or combined market shares exceed
25 per cent.

On 31 March 2022, the CCI notified a revised and simplified version of Form II
that came into effect on 1 May 2022. The revised Form II was streamlined to
reduce duplication of information requirements and its structure aligned with
the recently revised Form I. This is aimed to reduce the time and effort required
to move from Form I to Form II in the case of any invalidation or re-filing of a
notification. The CCI also intends to issue a guidance note to elaborate upon the
queries in the revised form.

In addition, Form III, unlike Forms I and II, is a type of post-completion notification
to the CCI for transactions involving share subscriptions, financing facilities
or acquisitions by public financial institutions, foreign institutional investors,
banks or venture capital funds. The Amendment Bill seeks to exempt these
transactions from notification requirements altogether.

Green Channel Route

The Green Channel Route of automatic approval was introduced in India in 2019
to ease compliance burdens for certain transactions where the acquirer group
has no horizontal overlap, vertical relationship or complementary relationship
with the target’s business. The transaction is deemed approved by the CCI upon
receipt of the acknowledgement of notification. However, if the CCI is of the

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opinion that the transaction does not qualify for the Green Channel Route, it
may declare such an approval as void ab initio and direct parties to re-file the
notification (subject to hearing the parties). The Green Channel Route has been
a huge success and, in 2022, a total of 25 combinations were deemed approved
through the Green Channel Route. Indeed, recently the CCI even allowed a
transaction involving minor vertical relationships to avail of the Green Channel
Route, displaying its commitment to aiding the ease of doing business in India.9

Undertaking pre-filing consultations with the CCI case team in relation to a

proposed Green Channel filing is recommended as it reduces risks of the CCI
rescinding its notice and allows parties to confirm the availability of the Green
Channel Route to certain transactions.

Review period

Phase I

The CCI is obligated to form a prima facie opinion on whether a combination

would cause an AAEC within 30 working days of the filing. This does not include
the time taken by the parties to provide additional information and clarifications.
The CCI can also stop the clock during Phase I for an additional 15 working days
to seek comments from third parties.

If the CCI forms a prima facie view that the combination is likely to cause an AAEC
in any relevant market in India, the CCI will issue a show cause notice, requiring
the parties to explain within 30 calendar days why the combination would not
adversely affect the market. During this phase, parties can propose voluntary
modifications to the combination so as to address any concern that the CCI may
have. In such a case, an additional period of 15 working days is available to the
CCI for forming its prima facie opinion. If the response submitted by the parties
is not found to be satisfactory, the CCI initiates a detailed Phase II investigation.

The CCI typically clears non-problematic Phase I investigations within four to six
weeks of notification and most combinations receive CCI approval within Phase I
of the review process itself. Indeed, we have been witnessing a trend for the CCI
to clear even competitively sensitive combinations in Phase I itself, with parties
offering convincing voluntary modifications to avoid protracted review timelines.

9 C-2021/02/812 – International Finance Corporation/Dodla (3 February 2021).

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Phase II

The Phase II review process involves a detailed investigation by the CCI where it
is obligated to approach third parties for their views on the combination. Parties
are also obligated to publicise the details of the combination to invite public
comments. Overall, the CCI has a period of 210 calendar days from the date
of notification to pass a final order on the combination. However, an additional
60 working days may be available to negotiate remedies. This period also
excludes any clock stops to account for the time taken by the parties to furnish
the CCI with information. It may therefore take longer than 210 calendar days to
clear a Phase II investigation. For example, five out of the eight transactions that
have undergone Phase II investigations received the approval of the CCI after
more than 300 days had passed since the filing of their notifications.10

Developments in 2022

Uncompromising stance on gun-jumping violations

In 2022, the CCI issued 11 gun-jumping decisions, highlighting the full breath of
its experience accumulated over the past decade. The CCI found the following
conduct problematic:

• premature consolidation through potential exchange of information between

parties (despite clean team arrangements);11
• failure to notify on account of (contended) exclusivity of jurisdiction of
specialised sectoral regulators;12
• part-consummation by placing acquired shares of the target enterprise
(through an open-market purchase) in escrow;13
• failure to notify an initial tranche of a transaction due to an incorrect
assessment of jurisdictional thresholds;14
• failure to notify due to erroneous application of the Item 1 exemption; and
• failure to notify due to incorrect turnover computation by preclusion of
subsidiaries of the target enterprise.15

In March 2022, the CCI imposed a penalty of 500,000 rupees in Adani Green/SB
Energy for violation of standstill obligations. While reviewing the transaction,
the CCI noted that a clause in the transaction documents allowed parties to
exchange information and for the acquirer to provide non-binding input to the

10 C-2016/05/400 – Dow Chemical Company/DowDu Pont (8 June 2017); C-2017/10/443 – Agrium Inc/Potash
Corporation of Saskatchewan Inc (27 October 2017); C-2014/07/190 – Holcim Limited/Lafarge
(30 March 2015); C-2017/08/523 – Bayer AG (14 June 2018); C-2015/07/288 - PVR/DT (4 May 2016).
11 C-2021/05/837 – Adani Green/SB Energy (9 March 2022).
12 C-2021/03/824 – Tata Power/WESCO (17 March 2022); C-2021/03/825 – Tata Power/SOUTHCO
(17 March 2022); C-2021/03/826 – Tata Power/CESU (17 March 2022).
13 C-2020/05/746 – SABIC BV/Clariant (19 July 2022).
14 Veolia Environnement SA/Suez SA (17 May 2022); GIP/IDFC Alternatives (30 August 2022).
15 Allcargo/GATI (2 May 2022).

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target. The CCI noted that the clause resulted in the combination to have come
into effect prior to CCI approval. The CCI clarified that such an assessment is
based on the inherence proportionality test along with a review of the efficacy
of safeguards put in place to avoid any anticompetitive effect. The CCI held
that the clause permitted more cooperation than was required to monitor and
preserve the economic value of the target. It rejected the contention that the
envisaged clean team arrangements acted as adequate safeguards against
the information exchange concerns. The CCI also opined that the possibility
of competition distortions (without any adequate safeguards) is enough to
constitute a gun-jumping violation and the intent of the parties is immaterial to
such a determination.

In March 2022, the CCI also imposed a cumulative penalty of 1.5 million
rupees on Tata Power in three decisions for its failure to notify its acquisitions
of shareholding in three electricity supply companies. Tata Power contented
that its acquisitions were undertaken under the exclusive domain of the Indian
Electricity Act 2003 and, accordingly, the CCI did not have jurisdiction to review
the transactions. The CCI, however, rejected these contentions, noting that as a
market regulator its jurisdiction extends to all sectors of the economy (whether
or not regulated by sector-specific laws). The CCI considered compliance with
condensed statutory timelines per sector-specific regulations (such as under the
Indian Electricity Act 2003 in this case) as a mitigating factor while determining
the amount of the penalty.

In July 2022, the CCI held SABIC International BV responsible for gun-jumping
violations for two consecutive acquisitions of a shareholding in Clariant AG. While
assessing the notification of SABIC’s acquisition of a 6.51 per cent shareholding
in Clariant through open-market purchases held in escrow, the CCI noted that it
had violated its standstill obligations by utilising the escrow mechanism. SABIC
contended that the additional shares held in escrow were devoid of voting rights
and were to be released to SABIC only upon the receipt of merger clearance by
the CCI. The CCI, however, observed that such mechanisms have been held to
violate standstill obligations by the CCI and confirmed by the Supreme Court of
India in the past.16 Noting that SABIC was eventually going to be vested with the
legal and beneficial ownership of the escrow shares, the CCI held that its merger
approval should have been obtained before SABIC acquired the shares through
the escrow mechanism. Taking account of a number of mitigating factors (such
as no bad-faith intentions to evade compliance, voluntary notification of the
transaction to the CCI and cooperation with the CCI), a token penalty of only
500,000 rupees was imposed on SABIC by the CCI. Interestingly, the Amendment
Bill proposes an exemption of transactions involving stock market purchases
from the standstill obligations under the Act. However, the acquirer would be
required to file a notice within a prescribed time and must not exercise any

16 C-2014/05/175 – SCM Solifert Limited (10 February 2015). Also see SCM Solifert and Anr v Competition
Commission of India, Supreme Court of India, Civil Appeal No. 10678 of 2016 (17 April 2018).

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ownership or beneficial rights or interest in the securities (including dividend

and voting rights).

The CCI’s decisional practice as well as its strict and robust enforcement in
cases of gun-jumping violations in 2022 show its growth as a maturing regulator.
Its 11 gun-jumping orders in 2022 are more than those imposed in the previous
three years combined. The highest penalty imposed was 10 million rupees on
a party that failed to notify a transaction to the CCI despite receiving all the
relevant information and clarifications to confirm the requirement to notify from
the CCI itself.17

Increased clarity on applicability of Item 1 exemptions

The CCI has, in the past year, also clarified the contours of the Item 1 exemption
in three gun-jumping decisions.18 In SABIC BV/Clariant,19 the CCI imposed a
penalty of 4 million rupees on SABIC for not notifying a transaction involving
an acquisition of a 24.99 per cent shareholding in Clariant along with the right
to nominate directors to Clariant’s board of directors. In PI Premji Invest/Future
Retail, the CCI imposed a penalty of 2 million rupees on PI Opportunities Fund
and Pioneer Investments Fund (collectively, Premji Invest) for not notifying a
transaction involving an acquisition of a 6.03 per cent shareholding in Future
Retail Limited (FRL) and the acceptance of FRL’s invitation to appoint board
members to its board of directors. Similarly, in Trian Partners/Trian Fund, the
CCI imposed a penalty of 2 million rupees on Trian Partners AM Holdco Ltd
and Trian Fund Management LP for not notifying a transaction wherein Trian
Fund Management acquired a 9.9 per cent shareholding in Invesco Limited
and, shortly thereafter, accepted Invesco’s invitation to appoint board members
to its board of directors. In all three instances, the CCI dismissed the parties’
submissions that their transactions should benefit from the Item 1 exemption.
Some important takeaways from the decisions are set out below.

Right to nominate directors

Representation on the board of directors of the target (even if such representation

is minor) would disqualify the application of the Item 1 exemption as it would
grant access to competitively sensitive information to the acquirer, which may
lead to coordinated outcomes in the market. Acquirers must notify the CCI
ex ante if there is an intention to participate in management or to have board
representation at the time of entering into certain transaction agreements.

17 Veolia Environnement SA/Suez SA (17 May 2022).

18 SABIC BV/Clariant (15 July 2022); M&A/Q1/2018/18 – Premji Invest/Future Retail (30 September 2022);
C-2021/01/810 – Trian Partners/Invesco (30 September 2022).
19 SABIC BV/Clariant (15 July 2022).

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If a board seat or management participation is a subsequent, unrelated

development, acquirers must seek and await CCI approval prior to giving effect
to such developments. Parties therefore cannot structure their transactions
separating the acquisition of shares and acquisition of rights or board seats and
benefit from the Item 1 exemption.

Ordinary course of business

To assess whether a transaction involving acquisition of shares is in the ordinary

course of business, the CCI would assess aspects such as frequency, duration,
holding and intent of the transactions of the acquirer. In addition, only revenue
transactions (not capital transactions) would be considered to be in the ordinary
course of business. Investments, by their very nature, would be considered as
capital transactions and therefore cannot be considered to be in the ordinary
course of business. Accordingly, if an acquirer contends that its transaction
is solely an investment, by implication, it cannot be in the ordinary course
of business.

Interestingly, in Trian Partners/Trian Fund, the CCI detected the non-notified

transaction while reviewing the Green Channel filing made by Trian for acquisition
of additional shareholding in Invesco. This demonstrates that, while transactions
under the Green Channel are deemed approved upon notification to the CCI, the
CCI still scrutinises such transactions and may initiate proceedings in the case
of any gun-jumping concerns. The CCI therefore maintains a delicate balance
of promoting the ease of doing business while also preserving its enforcement
priority regarding gun jumping.

Expansive powers of the CCI to examine notifiable transactions

The Act bestows expansive powers on the CCI to closely track and examine
merger and acquisition activity. For instance, the CCI has the ability to look back
and enquire into transactions that have not been notified for up to one year
from the date on which they took effect.20 When the CCI comes across such a
transaction, it typically sends a notice to the parties seeking an explanation for
non-notification. If the parties are unable to provide acceptable justifications,
the CCI directs the parties to file the merger notification and simultaneously
initiates gun-jumping proceedings.

The decisional practice in 2022 also indicated that, in essence, the CCI can
scrutinise transactions that have been completed or closed much earlier
(beyond the one-year time period). In August 2022, the CCI imposed a penalty of
3 million rupees on Global Infrastructure Partners Private Limited (GIP) for its

20 Section 20(1) of the Act.

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failure to notify an acquisition that was closed and consummated over four years
earlier in July 2018.21 On close examination, the CCI noted that, while assessing
notifying requirements in 2018, GIP did not include financials of the controlled
portfolio entities held by target infrastructure funds. This position was clarified
by the CCI through a 2021 decision.22 When GIP reassessed the requirement
to notify after receiving a show-cause notice from the CCI, the transaction did
not qualify for the de minimis exemption. Although the CCI could not direct
parties to notify the transaction (due to the statutory limitation of one year), it
nonetheless initiated gun-jumping proceedings and imposed a fine for failure
to notify. The CCI’s ruling in GIP/IDFCA Alternatives therefore clarifies that, for
the purposes of thresholds assessment, the value of assets and turnover of
the controlled portfolio entities are also required to be consolidated along with
the target enterprise to assess whether a transaction would trigger a merger
notification to the CCI.

In December 2021, the CCI also demonstrated its expansive powers when
it suspended the approval it had granted in 2019 to Amazon’s acquisition of
a 49 per cent shareholding of Future Coupons Private Limited.23 The CCI
noted that Amazon did not notify all the interconnected steps of its composite
transaction and concealed material facts, including its strategic intent behind
the transaction. The CCI directed Amazon to re-notify this transaction and held
that, until the decision on the revised notification was granted, the approval
provided by the CCI for the already notified steps will remain in abeyance. In
June 2022, the National Company Law Appellate Tribunal (NCLAT) upheld the
CCI’s order and recognised its inherent power to suspend a merger approval on
the grounds of suppressed facts and misstatements or misrepresentations.24
The NCLAT also upheld the unprecedented penalty of 2 billion rupees, which
was imposed on Amazon for failure to notify the complete transaction. The
NCLAT, however, reduced the penalty for omission to submit material facts by
half (from 20 million to 10 million rupees). To date, the matter is pending before
the Supreme Court of India for final adjudication.

Increasing familiarity with competitively significant transactions

In 2022, the CCI demonstrated its increasing maturity by clearing competitively

sensitive transactions in Phase I itself by accepting voluntary remedies offered
by parties.

21 GIP/IDFC Alternatives (30 August 2022).

22 C-2022/02/909 – Investcorp/IDFC Alternatives (17 December 2021).
23 C-2019/09/688 – Amazon.com NV Investment Holdings LLC (17 December 2021).
24 Competition Appeal (AT) No. 1 of 2022 – Amazon.com NV Investment Holdings LLC v CCI & Ors
(13 June 2022).

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In October 2022, the CCI conditionally approved the merger between Zee and
Sony, two leading broadcasting houses in India. The CCI observed high levels
of overlap between various segments of the parties’ businesses, and noted that
the resultant entity would be the largest broadcasting house in India and an
indispensable partner to downstream players. Accordingly, the CCI issued a
notice to the parties directing them to show cause as to why the CCI should not
proceed to a Phase II investigation. The parties addressed the CCI’s concerns by
voluntarily offering divestitures of three television channels belonging to Zee’s
portfolio. The CCI was satisfied with the voluntary remedies (with the condition
that the channels must not be acquired by other leading players in the market)
and approved the transaction without an in-depth review process.

In both instances, the notifying parties were able to address the concerns of
the CCI by providing adequate voluntary remedies in Phase I of the investigation
itself. This can understandably be equally attractive to both the parties and the
CCI. Parties can benefit from shortened deal timelines by identifying potential
concerns and providing an appropriate remedy package to the CCI at an early
stage of the investigation. The CCI would also welcome engagement with
parties offering suitable commitments, thereby preserving its precious time and
resources.

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Sonam Mathur
TT&A

Sonam Mathur is a partner at TT&A and leads the competition law practice.
She advises clients on the full range of competition law issues, including
investigations into cartel and abuse of dominance allegations and complex
merger control transactions (with Phase II investigations and remedies). She
has successfully advised and represented clients operating in diverse sectors
before the Competition Commission of India, the National Company Law
Appellate Tribunal and the Supreme Court of India. She also regularly advises
clients on compliance with Indian competition law.

Sonam was recognised in 2023 in Chambers Global and Chambers Asia-Pacific,

and has been recommended as a Future Leader in Competition by Who’s
Who Legal.

She received her BA LLB from the WB National University of Juridical Sciences,
Kolkata and her LLM in competition law from King’s College London.

Shubhang Joshi
TT&A

Shubhang Joshi is a managing associate at TT&A in the competition law

practice in New Delhi. He has advised a wide variety of Indian and global clients
on all aspects of competition law including merger control (with Phase II
investigations and remedies as well as multi-jurisdiction notifications), abuse
of dominance, horizontal and vertical agreements, compliance and competition
litigation. His experience covers a range of business sectors, including digital
market platforms for e-commerce and food delivery, pharmaceuticals, energy
and industrial gases, broadcasting and telecommunications, petrochemicals,
and food and beverages.

Shubhang pursued his BA LLB (Honours) at Gujarat National Law University

and obtained his LLM (with distinction) in competition law from University
College London.

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India: merger control | TT&A

Dhruv Dikshit
TT&A

Dhruv Dikshit is a senior associate at TT&A in the competition law practice

in New Delhi. Dhruv has advised a number of Indian and global clients on all
competition law aspects including merger control and antitrust investigations
before the Competition Commission of India. He has also conducted several
antitrust audits (including forensic review) and regularly advises on competition
compliance programmes. Dhruv’s experience spans a wide range of industries
including digital markets and platforms, fast-moving consumer goods, alcoholic
beverages and e-commerce.

Dhruv received his LLB (Honours) from the University of Delhi. He also holds a
BA (Honours) in English from the University of Delhi.

TT&A is a young and dynamic firm that brings together the experience of its partners and the
enthusiasm of its strong team to offer quality legal advice on the ground in India. TT&A has
an impressive track record of working with international companies and financial institutions
investing or expanding their activities in India, and of leading Indian and international
corporates in relation to their Indian and offshore operations. The firm has consistently
been recommended for its in-depth experience, formidable understanding of the regulatory
landscape and impeccable turnaround on the most complex transactions.

The Mira, 2nd Floor Sonam Mathur

Block C-2, Mathura Road sonam.mathur@tta.in
Ishwar Nagar
New Delhi 110065 Dhruv Dikshit
India dhruv.dikshit@tta.in
Tel: +91 11 4629 9991
Shubhang Joshi
www.tta.in shubhang.joshi@tta.in

Asia-Pacific Antitrust Review 2023 150