Merged Issue 1,2 (R)

purchase
of up to 20 lacs equity shares representing 1.7 percent
shares of the MCFL. Subsequently, an open offer in terms of the
SEBI (Substantial Acquisition of Shares and Takeovers)
Regulations, 2011 (for short, "the Regulations, 2011") was made for
acquiring up to 26 percent of shares of the MCFL.
5. The appellants filed a notice disclosing details of the first
acquisition and notifying the second acquisition under Section 6(2)
of the Act with the Commission on 22.04.2014 within thirty days of
the public announcement pursuant to the Regulations, 2011 for
the acquisition of 1.7 percent of the MCFL. The Competition
Commission vide its order dated 30.07.2014 under section 31(1) of
the Act approved the proposed combination, however, directed to
initiate penalty proceedings against the appellants under section
43A of the Act. Pursuant to that, a show cause notice was issued
on the ground of failure to notify in accordance to section 6(2) of
the Act, in regard to first and second acquisitions of shares.
6. It was the case on behalf of the appellants that first
acquisition was made solely for the purpose of investment under
Entry I of Schedule I of the CCI (Procedure in regard to the
Transaction of Business Relating to Combinations) Regulations,
3
2011, (hereinafter referred to as "the Competition Regulations").
Thereby, it assumed exemption from the notification. It was also
urged that the second acquisition was notified to the Commission
within the stipulated time of 30 days as specified in section 6(2) of
the Act. The purchase was not consummated because as per the
Escrow Agreement dated 28.04.2014, the shares purchased in the
second acquisition were credited to a specifically designated Escrow
account of J.M. Financial Services Limited. The sole purpose of
entering into an escrow agreement was that the transaction was
not consummated prior to approval of the Commission. The
Commission has imposed the penalty of 2 crores; the appellate
tribunal has affirmed the order. The Commission has held that the
appellants have violated section 6(2) of the Act by failing to notify
the proposed combination.
7. It was urged by learned counsel on behalf of the appellants
that first acquisition did not fall within the purview of Entry 1
Schedule 1. The interpretation made by the Commission of the
Entry 1 of Schedule 1 is incorrect. With respect to the second
acquisition of shares, it was urged that the sole purpose of creation
of Escrow Account was to ensure that the appellants could not
4
Fair Competition
For Greater Good
COMPETITION COMMISSION OF INDIA

(Combination Registration No. C-2014/08/202)
10.11.2014
Notice under section 6(2) of the Competition Act, 2002 given by:
 New Moon B.V.
Order under Section 31(1) of the Competition Act, 2002
1. On 12.08.2014, the Competition Commission of India (hereinafter referred to as

the “Commission”) received a notice under sub-section (2) of Section 6 of the
Competition Act, 2002 given by New Moon B.V. (hereinafter referred to as the
the “Acquirer”). The notice was filed pursuant to the Business Transfer
Agreement and Plan of Merger (hereinafter referred to as the “BTA”), entered
into between Abbott Laboratories (hereinafter referred to as “Abbott”), Mylan
Inc. (hereinafter referred to as „Mylan‟), Acquirer and Moon of PA Inc.
(hereinafter referred to as “Merger Sub”), on 13.07.2014 (hereinafter Abbott,
Mylan, Acquirer and Merger Sub are collectively referred as the „Parties‟).
2. In terms of Regulation 14 of the Competition Commission of India (Procedure in

regard to transaction of business relating to combinations) Regulations, 2011
(„Combination Regulations‟), vide letter dated 29.08.2014, the Acquirer was
required to remove certain defects and provide information/document(s). The
Acquirer submitted its reply vide letter dated 10.09.2014, which was found to be
incomplete; and therefore, another letter was sent to the Acquirer on 15.09.2014
in terms of Regulation 14 of the Combination Regulations. The reply to the said
letter was received from the Acquirer on 07.10.2014, after seeking an extension.
However, as the said reply was still incomplete, the Acquirer was again asked to
submit required information vide our letter dated 13.10.2014. The Acquirer
submitted certain clarifications on 14.10.2014; however, since these clarifications
were not sufficient, the Acquirer was further asked to provide complete
information vide our letter dated 16.10.2014. The response of the Acquirer in this
regard was received on 22.10.2014. The Acquirer was further sent a letter on
27.10.2014 under Regulation 14 of the Combination Regulations for which the
Acquirer filed its final response on 03.11.2014.
Page 1 of 5
Fair Competition
For Greater Good
Mylan’s common stock will be cancelled and the Acquirer will issue its shares to
the former shareholders of Mylan and consequently, the Acquirer will become the
parent company of Mylan.
6. It is also noted that an intimation of change to the notice under Regulation 16 of

the Combination Regulations was filed by the Acquirer vide letter dated
03.11.2014, pursuant to execution of an Amendment Agreement signed between
the Parties on 21.10.2014. As per the information furnished by the Acquirer, the
Amendment Agreement (i) adjusts the pricing terms pursuant to which the
affiliates of Abbott will manufacture and supply products for affiliates of the
Acquirer, and (ii) increases the number of shares to be issued to Abbott, as a
result of which, the former shareholders of Mylan will own approximately 78 per
cent and Abbott and its affiliates will own approximately 22 per cent of
shareholding in the Acquirer. The Commission considered the above said
changes in the proposed combination and noted that the said changes are not
likely to affect the factors for determination of the appreciable adverse effect on
competition in India. The Commission, accordingly, took on record the said
changes in the proposed combination as intimated by the Parties.
7. As regards the transfer of EPP segment of Abbott in Europe, Japan, Australia,

New Zealand and Canada to the Acquirer, it has been stated in the notice that the
said transfer will have no impact in India as Mylan and Abbott will continue to
operate the said business in India.
8. It has also been submitted by the Acquirer that the proposed acquisition of 22 per
cent shareholding by Abbott in the Acquirer, as per the Amendment agreement
dated 21.10.14, would be exempt in view of Regulation 4 read with Item 1 of
Schedule I to the Combination Regulations, as the said acquisition of shares by
Abbott in the Acquirer would be made solely as an investment, which would not
result in acquisition of control by Abbott over the Acquirer.
9. In this regard, it is observed that an acquisition of shares or voting rights, even if

it is of less than 25 per cent, may raise competition concerns if the acquirer and
the target are either engaged in business of substitutable products/services or are
Page 3 of 5
Fair Competition
For Greater Good
engaged in activities at different stages or levels of the production chain. Such

acquisitions need not necessarily be termed as an acquisition made solely as an
investment or in the ordinary course of business, and thus would require
competition assessment, on a case to case basis, under the relevant provisions of
the Act.
10. In view of the above, the Acquirer was asked to provide information related to
business activities of Mylan and Abbott in India. As per the data provided by the
Acquirer, it is observed that there is horizontal overlap between the
pharmaceutical products of Mylan and Abbott in India with respect to certain
molecules namely, colecalciferol, progesterone, human menopausal
gonadotrophin, chorionic gonadotrophin, emtricitabine tenofovir disoproxil and
tenofovir disoproxil. However, it is observed that in all of the said overlapping
molecules, the combined market share of Mylan and Abbott is between [6-10] per
cent and the incremental market share is between [0-5] per cent. Accordingly, it is
observed that the horizontal overlap between the pharmaceutical products of
Mylan and Abbott in India is insignificant to raise any competition concern in
India. Further, as per the information provided in the notice, there is no vertical
relationship between the Abbott and Mylan in India. In addition to above, as
stated in the notice, the proposed acquisition of 22 per cent shareholding by
Abbott in the Acquirer would also not provide Abbott any affirmative voting
rights or veto rights in the Acquirer.
11. Considering the facts on record and the details provided in the notice given under
sub-section (2) of Section 6 of the Act and assessment of the proposed
combination on the basis of factors stated in sub-section (4) of Section 20 of the
Act, the Commission is of the opinion that the proposed combination is not likely
to have an appreciable adverse effect on competition in India and therefore, the
Commission hereby approves the same under sub-section (1) of Section 31 of the
Act.
12. This approval is without prejudice to any other legal/statutory obligations as

applicable.
Page 4 of 5
NATIONAL COMPANY LAW APPELLATE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Competition Appeal (AT) No. 01 of 2022
In the matter of :
Amazon.com NV Investment Holdings LLC
2215-B, Renaissance Drive,
Las Vegas, Nevada,
USA – 89119 ….. Appellant
V
1. Competition Commission of India & Ors.
Through its Secretary
9th Floor, Office Block-I
Kidwai Nagar (East), Opposite Ring Road,
New Delhi – 110023, India …..Respondent No.1
2. Future Coupons Private Limited
2nd Floor, Sobo Central Mall,
Pt. Madan Mohan Malviya Road,
Haji Ali, Tardeo, Mumbai – 400034
Maharashtra …..Respondent No.2
3. Confederation of All India Traders
Through its General Secretary,
Mr. Praveen Khandelwal,
Vyapar Bhawan, 925 / Gali No.1
Pocket B1, Nai Walan,
Karol Bagh, New Delhi – 110005 …..Respondent No.3
Present:
For Appellant : Mr. Gopal Subramanium, Mr. Arun Kathpalia
and Mr. Amit Sibal, Senior Advocates
Mr. Pavan Bhushan, Ms. Ujwala Uppaluri,
Ms. Hima Lawrence, Ms. Bani Brar,
Mr. Kaustubh Prakash, Mr. Aishvary Vikram
Singh, Mr. Swapnil Singh, Mr. Saksham
Dhingra, Mr. Vinay Tripathi, Mr. Anand
Pathak, Mr. Shashank Gautam, Ms. Sreemoyee
Page 1 of 310
The Investor’s has no shareholding in FRL, and does not exercise
any control or influence on it, therefore the Proposed Combination
should not be subjected to Form II filing requirement…In the
present case, with a view to assist the Hon’ble Commission and
out of abundant caution, the overlap in the retail market has been
identified, pursuant to the FRL Warrants held by FCL…”
[Emphasis Supplied]
These claims were made by completely masking the fact that FRL
SHA and BCAs are inter-connected parts of the Combination,
contemplated to establish strategic alignments between the
business activities of FRL and Amazon Group. This is a critical
factor for determining the need for filing Form II in the matter.
However, consistent with the design across the Notice and
subsequent submissions of Amazon, the said details were
suppressed in response to the said query 2.9.
77. The Commission notes that the details of overlap between FRL
and Amazon Group, provided in the Notice, and subsequent
submissions of Amazon as well as the competition assessment
conducted in the Approval Order are in the context of FCPL
holding warrants in FRL. However, the said assessment is
definitely not from the perspective of strategic alignments between
FRL and Amazon Group. This is obvious from the Approval Order
as it does not make any reference to FRL SHA or the BCAs. The
Commission observes that the effect of commercial contracts
entered into between FRL and Amazon Group entities, in their
normal course of business, would be considerably different from
parties contemplating strategic alignments between their business
through strategic investments. The regulatory process of
notification by the parties that would follow an admission of the
commercial contracts being part of the combination and also the
purpose of the strategic acquisition of shares and rights would
entail consequential presentation of facts, representations,
clarifications and undertakings, if any, which would not be present
when such contracts are independent of the combination. The
Page 305 of 310
(Combination Registration No. C-2017/10/531) Fair Competition
For Greater Good
27.08.2018
Notice given under Section 6(2) of the Competition Act, 2002 by

Bharti Airtel Limited: Combination Regn. No. C-2017/10/531
CORAM:
Mr. Sudhir Mital
Chairperson
Mr. Augustine Peter

Member
Mr. U. C. Nahta
Member
Mr. G. P. Mittal
Member
Appearances during Oral hearing on 24.07.2018 for Bharti Airtel Limited:

Mr. Amit Sibal, Senior Advocate, Ms Aditi Gopalakrishnan, Advocate, Mr. Aakarsh Narula,
Advocate, Mr. Nikhil Bahl, Advocate, Mr. Avinash Amarnath, Advocate, Mr. Sameer Chugh
and Ms Nitya, Legal Counsels, Bharti Airtel Limited
Order under Section 43A of the Competition Act, 2002
A. Background
1. On 16.10.2017, the Competition Commission of India (“Commission”) received a notice

under Section 6(2) of the Competition Act, 2002 (“Act”), given by Bharti Airtel Limited
(“Airtel”) relating to proposed acquisition of 100 percent of the consumer mobile business
run by Tata Teleservices Limited (“TTSL”) and Tata Teleservices (Maharashtra) Limited
Page 1 of 15
(Combination Registration No. C-2017/10/531) Fair Competition
For Greater Good
22. The aforesaid opinion of the Commission is also in sync with international decisional
practices in this regard. In United States of America v. Atlantic Richfield Company and
Others (Civil Action No. 910205, United States District Court for the District of the District
of Columbia), ARCO Chemical and Union Carbide Chemicals entered into an acquisition
agreement on 27.09.1989 and under the terms of acquisition agreement, inter alia, ARCO
Chemicals was required to cover liabilities from the continued operation of the Union
Carbide Assets after 27.09.1989. By an adjustment mechanism in the acquisition agreement,
the purchase price was to increase at closing if Union Carbide Chemicals incurred a negative
net cash from Union Carbide Assets and would be decreased if Union Carbide Chemicals
realized a positive net cash flow. The United States Federal Trade Commission filed a
complaint alleging violation of standstill obligations contained in the Clayton Act,
commonly known as the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (“HSR
Act”) considering the aforesaid arrangement together with other arrangements had the effect,
upon execution, of transferring beneficial ownership of the Union Carbide assets to ARCO
Chemical so that ARCO Chemical and its parent, Atlantic Richfield Company, acquired
those assets on 27.09.1989. The court held the same to be in violation of the HSR Act. […]
23. Airtel has also submitted that the Transaction involved a number of regulatory approvals and
considering the said approvals, there is a fair bit of deal uncertainty and due to the same,
[…]. As stated above, the basic objective of standstill obligations is to maintain competition
in the interim period. Accordingly, even if the Transaction was not to go through ultimately
and the ER Clause did not come into effect, the same would be in contravention of standstill
obligations for the potential adverse effect on competition caused in the interim period. Airtel
has submitted that Tata CMB’s indulgence in any risk-taking action (due to any reduced
incentives to compete) during the interim period would have been detrimental to Tata CMB’s
interest. In this regard, the Commission observed that the exact incentives for entering into
any agreement are best known to the parties and the Commission can only be guided by the
nature/scope of agreement and information on record. Further, all the combination
transactions have a number of conditions to be fulfilled before consummation which implies
theoretically there is uncertainty in all the transactions. If a conclusion is drawn that such
Page 13 of 15
G:\COMP\ANTITRU\CLAYTON ACT.XML
CLAYTON ACT
[Chapter 323 of the 63rd Congress; 38 Stat. 730]
[As Amended Through P.L. 108–237, Enacted June 22, 2004]
øCurrency: This publication is a compilation of the text of Chapter 363 of the 63rd
Congress. It was last amended by the public law listed in the As Amended
Through note above and below at the bottom of each page of the pdf version and
reflects current law through the date of the enactment of the public law listed at
https://www.govinfo.gov/app/collection/comps/¿
øNote: While this publication does not represent an official version of any Federal
statute, substantial efforts have been made to ensure the accuracy of its contents.
The official version of Federal law is found in the United States Statutes at Large
and in the United States Code. The legal effect to be given to the Statutes at
Large and the United States Code is established by statute (1 U.S.C. 112, 204).¿
An Act To supplement existing laws against unlawful restraints and monopolies,
and for other purposes.
Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled, That (a) ‘‘antitrust
laws,’’ as used herein, includes the Act entitled ‘‘An Act to protect
trade and commerce against unlawful restraints and monopolies,’’
approved July second, eighteen hundred and ninety; sections sev-
enty-three to seventy-six, inclusive, of an Act entitled ‘‘An Act to
reduce taxation, to provide revenue for the Government, and for
other purposes,’’ of August twenty-seventh, eighteen hundred and
ninety-four; an Act entitled ‘‘An Act to amend sections seventy-
three and seventy-six of the Act of August twenty-seventh, eighteen
hundred and ninety-four, entitled ‘An Act to reduce taxation, to
provide revenue for the Government, and for other purposes,’ ’’ ap-
proved February twelfth, nineteen hundred and thirteen; and also
this Act.
‘‘Commerce,’’ as used herein, means trade or commerce among
the several States and with foreign nations, or between the District
of Columbia or any Territory of the United States and any State,
Territory, or foreign nation, or between any insular possessions or
other places under the jurisdiction of the United States, or between
any such possession or place and any State or Territory of the
United States or the District of Columbia or any foreign nation, or
within the District of Columbia or any Territory or any insular pos-
session or other place under the jurisdiction of the United States:
Provided, That nothing in this Act contained shall apply to the
Philippine Islands.
The word ‘‘person’’ or ‘‘persons’’ wherever used in this Act shall
be deemed to include corporations and associations existing under
or authorized by the laws of either the United States, the laws of
any of the Territories, the laws of any State, or the laws of any for-
eign country.
1
April 23, 2020 As Amended Through P.L. 108-237, Enacted June 22, 2004
VerDate 0ct 09 2002 16:58 Apr 23, 2020 Jkt 000000 PO 00000 Frm 00001 Fmt 9001 Sfmt 9001 G:\COMP\ANTITRU\CA.BEL HOLC
11 CLAYTON ACT Sec. 7
that such filing is a true and complete description of such commu-

nications known to the defendant or which the defendant reason-
ably should have known.
(h) Proceedings before the district court under subsections (e)
and (f) of this section, and the competitive impact statement filed
under subsection (b) of this section, shall not be admissible against
any defendant in any action or proceeding brought by any other
party against such defendant under the antitrust laws or by the
United States under section 4A of this Act nor constitute a basis
for the introduction of the consent judgment as prima facie evi-
dence against such defendant in any such action or proceeding.
(i) Whenever any civil or criminal proceeding is instituted by
the United States to prevent, restrain, or punish violations of any
of the antitrust laws, but not including an action under section 4A,
the running of the statute of limitations in respect of every private
or State right of action arising under said laws and based in whole
or in part on any matter complained of in said proceeding shall be
suspended during the pendency thereof and for one year thereafter:
Provided, however, That whenever the running of the statute of
limitations in respect of a cause of action arising under section 4
or 4C is suspended hereunder, any action to enforce such cause of
action shall be forever barred unless commenced either within the
period of suspension or within four years after the cause of action
accrued.
ø15 U.S.C. 16¿
SEC. 6. that 2 the labor of a human being is not a commodity
or article of commerce. Nothing contained in the antitrust laws
shall be construed to forbid the existence and operation of labor,
agricultural, or horticultural organizations, instituted for the pur-
poses of mutual help, and not having capital stock or conducted for
profit, or to forbid or restrain individual members of such organiza-
tions from lawfully carrying out the legitimate objects thereof; nor
shall such organizations, or the members thereof, be held or con-
strued to be illegal combinations or conspiracies in restraint of
trade, under the antitrust laws.
ø15 U.S.C. 17¿
SEC. 7. That no person engaged in commerce or in any activity
affecting commerce shall acquire, directly or indirectly, the whole
or any part of the stock or other share capital and no person sub-
ject to the jurisdiction of the Federal Trade Commission shall ac-
quire the whole or any part of the assets of another person engaged
also in commerce or in any activity affecting commerce, where in
any line of commerce or in any activity affecting commerce in any
section of the country, the effect of such acquisition may be sub-
stantially to lessen competition, or to tend to create a monopoly.
No person shall acquire, directly or indirectly, the whole or any
part of the stock or other share capital and no person subject to
the jurisdiction of the Federal Trade Commission shall acquire the
whole or any part of the assets of one or more persons engaged in
commerce or in any activity affecting commerce, where in any line
of commerce, or in any activity affecting commerce in any section
2 So in original.
Sec. 7A CLAYTON ACT 12
of the country, the effect of such acquisition, of such stocks or as-

sets, or of the use of such stock by the voting or granting of proxies
or otherwise, may be substantially to lessen competition, or to tend
to create a monopoly.
This section shall not apply to persons purchasing such stock
solely for investment and not using the same by voting or other-
wise to bring about, or in attempting to bring about, the substan-
tial lessening of competition. Nor shall anything contained in this
section prevent a corporation engaged in commerce or in any activ-
ity affecting commerce from causing the formation of subsidiary
corporations for the actual carrying on of their immediate lawful
business, or the natural and legitimate branches or extensions
thereof, or from owning and holding all or a part of the stock of
such subsidiary corporations, when the effect of such formation is
not to substantially lessen competition.
Nor shall anything herein contained be construed to prohibit
any common carrier subject to the laws to regulate commerce from
aiding in the construction of branches or short lines so located as
to become feeders to the main line of the company so aiding in such
construction or from acquiring or owning all or any part of the
stock of such branch lines, nor to prevent any such common carrier
from acquiring and owning all or any part of the stock of a branch
or short line constructed by an independent company where there
is no substantial competition between the company owning the
branch line so constructed and the company owning the main line
acquiring the property or an interest therein, nor to prevent such
common carrier from extending any of its lines through the me-
dium of the acquisition of stock or otherwise of any other common
carrier where there is no substantial competition between the com-
pany extending its lines and the company whose stock, property, or
an interest therein is so acquired.
Nothing contained in this section shall be held to affect or im-
pair any right heretofore legally acquired: Provided, That nothing
in this section shall be held or construed to authorize or made law-
ful anything heretofore prohibited or made illegal by the antitrust
laws, nor to exempt any person from the penal provisions thereof
or the civil remedies therein provided.
Nothing contained in this section shall apply to transactions
duly consummated pursuant to authority given by the Secretary of
Transportation, Federal Power Commission, Surface Transpor-
tation Board, the Securities and Exchange Commission in the exer-
cise of its jurisdiction under section 10 of the Public Utility Holding
Company Act of 1935, the United States Maritime Commission, or
the Secretary of Agriculture under any statutory provision vesting
such power in such Commission, Board, or Secretary.
ø15 U.S.C. 18¿
SEC. 7A. (a) Except as exempted pursuant to subsection (c), no
person shall acquire, directly or indirectly, any voting securities or
assets of any other person, unless both persons (or in the case of
a tender offer, the acquiring person) file notification pursuant to
rules under subsection (d)(1) and the waiting period described in
subsection (b)(1) has expired, if—
TAILORED SOLUTIONS IN ECONOMICS
Ex-post Assessment of Merger Control

Decisions in Digital Markets
Final report
Document prepared by Lear for the Competition and Markets Authority
9 May 2019
Lear
Via di Monserrato, 48
00186 – Rome
tel. +39 06 68 300 530
e-mail: lear@learlab.com
web: www.learlab.com
that drive advertisers’ choices, how the merging parties fared with respect to each of them, and how
their combination could have resulted in competitive harm. The exclusivity of the user base, the size
of the user base and the accuracy that can be delivered in targeting are all relevant dimensions of
competition that the merger was likely to affect. However, as discussed in section I.5, more research
is needed to better understand how competition works in the sector.
II.266. Similar gaps can be found in the way that Priceline/Kayak and Amazon/The Book Depository
were assessed. In Priceline/Kayak, the Authorities did not determine whether the services supplied by
MSSs and OTAs should be regarded as substitutes or complements, which may have led to
measurement problems in the assessment of unilateral effects through market share evidence. In
Amazon/The Book Depository, the Authorities did not consider the existence of a possible vertical
relationship between the merging parties, which may have called for the investigation of foreclosure
ToHs.
II.267. In the assessment of potential competition, and most notably in Facebook/Instagram and
Google/Waze, the Authorities identified the correct evidence and found that Instagram and Waze had
witnessed constant and significant growth in the years leading up to the merger, had promising
business models and plans for an expansion that might have increased their relevance in the markets
where their acquirers were active. Yet, the Authorities dismissed this evidence mostly due to the
uncertainty surrounding whether Instagram’s and Waze’s potential would have been realized. Rarely,
if ever, will the Authorities find conclusive evidence of future growth: potential competition ToHs will
always entail a certain degree of uncertainty. If the Authorities wish to pursue this type of ToH in the
future, then they should be willing to accept a greater degree of uncertainty in their evaluations.
II.268. While we have identified some gaps in the way that the Authorities analysed these cases, it is
not always clear whether competitive harm has arisen as a result of such gaps. The decisions taken in
Facebook/Instagram and Google/Waze may have represented missed opportunities for the
emergence of challengers to the market incumbents but have also likely resulted in efficiencies. The
decisions taken in Priceline/Kayak and Amazon/The Book Depository appear less controversial, as the
level of competition in the markets concerned does not seem to have been substantially affected by
the mergers.
Lear – www.learlab.com 118

[PUBLISHED IN THE GAZETTE OF INDIA, EXTRAORDINARY, PART III, SECTION 4
th
Dated 11 May, 2009]
The Competition Commission of India (Procedure in regard to the transaction of business

relating to combinations) Regulations, 2011
(No.3 of 2011)
New Delhi, the 11th day of May, 2011
No. 1-1/Combination Regulations/2011-12/CD/CCI.--- In exercise of the powers conferred by

sub-section (1) and clauses (b), (c) and (f) of sub-section (2) of section 64 read with sub-sections
(2) and (5) of section 6 of the Competition Act, 2002 (12 of 2003), the Competition Commission
of India hereby makes the following regulations, 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) Regulations, 2011.
(2) They shall come into force on 1st day of June, 2011.
2. Definitions.-
(1) In these regulations, unless the context otherwise requires:-
(a) “Act” means the Competition Act, 2002 (12 of 2003) as amended from time to
time;
(b) “Combination” means and includes combination as described in section 5 of the

Act and any reference to combination in these regulations shall mean a proposed
combination or the combined entity, if the combination has come into effect, as
the case may be;
(c) “Commission” means the Competition Commission of India established under

subsection (1) of section 7 of the Act;
(d) “Director General” means the Director General appointed under sub-section (1) of
section 16 of the Act and includes any Additional, Joint, Deputy or Assistant
Directors General appointed under the said section;
(e) “Enterprise” shall mean „enterprise‟ as defined in clause (h) of section 2 of the
Act;
9. Obligation to file the notice.-
(1) In case of an acquisition or acquiring of control of enterprise(s), the acquirer shall file
the notice in Form I or Form II, as the case may be, which shall be duly signed by the
person(s) as specified under regulation 11 of the Competition Commission of India
(General) Regulations, 2009.
Provided that in case of a company, apart from the persons specified under
clause (c) of sub-regulation (1) of regulation 11 of the Competition Commission of India
(General) Regulations, 2009, Form I or Form II may also be signed by the Company
Secretary of the company, duly authorised by the board of directors of the company.
(2) In case the enterprise is being acquired without its consent, the acquirer shall furnish
such information as is available to him, in Form I or Form II, as the case may be,
relating to the enterprise being acquired:
Provided that all information required to be filed, relating to the enterprise being
acquired shall be filed with the Commission within fifteen days from filing of the notice
and in case the acquirer is not in a position to furnish all the required information in
Form I or Form II, as the case may be, relating to the enterprise being acquired, the
Commission may direct the enterprise being acquired to furnish such information as it
deems fit and the time taken by the parties to the combination or the acquired
enterprise, as the case may be, in furnishing the required information including
document(s) shall be excluded from the period provided in sub-section (11) of section
31 of the Act and sub-regulation (1) of regulation 19 of these regulations.
(3) In case of a merger or an amalgamation, parties to the combination shall jointly file the
notice in Form I or Form II, as the case may be, duly signed by the person(s) as
specified under regulation 11 of the Competition Commission of India (General)
Regulations, 2009.
Provided that in case of a company, apart from the persons specified under
clause (c) of sub-regulation (1) of regulation 11 of the Competition Commission of India
(General) Regulations, 2009, Form I or Form II may also be signed by the Company
Secretary of the company, duly authorised by the board of directors of the company.
(4) Where the ultimate intended effect of a business transaction is achieved by way of a
series of steps or smaller individual transactions which are inter-connected or inter-
dependent on each other, one or more of which may amount to a combination, a single
notice, covering all these transactions, may be filed by the parties to the combination.
THE COMPANIES ACT, 2013
__________________
ARRANGEMENT OF SECTIONS
__________________
CHAPTER I
PRELIMINARY
SECTIONS
1. Short title, extent, commencement and application.
2. Definitions.
CHAPTER II
INCORPORATION OF COMPANY AND MATTERS INCIDENTAL THERETO
3. Formation of company.
4. Memorandum.
5. Articles.
6. Act to override memorandum, articles, etc.
7. Incorporation of company.
8. Formation of companies with charitable objects, etc.
9. Effect of registration.
10. Effect of memorandum and articles.
11. [Omitted].
12. Registered office of company.
13. Alteration of memorandum.
14. Alteration of articles.
15. Alteration of memorandum or articles to be noted in every copy.
16. Rectification of name of company.
17. Copies of memorandum, articles, etc., to be given to members.
18. Conversion of companies already registered.
19. Subsidiary company not to hold shares in its holding company.
20. Service of documents.
21. Authentication of documents, proceedings and contracts.
22. Execution of bills of exchange, etc.
CHAPTER III
PROSPECTUS AND ALLOTMENT OF SECURITIES
PART I.—Public offer
23. Public offer and private placement.
24. Power of Securities and Exchange Board to regulate issue and transfer of securities, etc.
25. Document containing offer of securities for sale to be deemed prospectus.
26. Matters to be stated in prospectus.
27. Variation in terms of contract or objects in prospectus.
28. Offer of sale of shares by certain members of company.
29. Public offer of securities to be in dematerialised form.
30. Advertisement of prospectus.
31. Shelf prospectus.
32. Red herring prospectus.
33. Issue of application forms for securities.
34. Criminal liability for mis-statements in prospectus.
35. Civil liability for mis-statements in prospectus.
1
(85) ‗‗small company‘‘ means a company, other than a public company,—
(i) paid-up share capital of which does not exceed fifty lakh rupees or such higher amount as may
be prescribed which shall not be more than five crore rupees; or
(ii) turnover of which as per its last profit and loss account does not exceed two crore rupees or
such higher amount as may be prescribed which shall not be more than twenty crore rupees:
Provided that nothing in this clause shall apply to—
(A) a holding company or a subsidiary company;
(B) a company registered under section 8; or
(C) a company or body corporate governed by any special Act;
(86) ―subscribed capital‖ means such part of the capital which is for the time being subscribed by the
members of a company;
(87) ―subsidiary company‖ or ―subsidiary‖, in relation to any other company (that is to say the
holding company), means a company in which the holding company—
(i) controls the composition of the Board of Directors; or
(ii) exercises or controls more than one-half of the total share capital either at its own or together
with one or more of its subsidiary companies:
Provided that such class or classes of holding companies as may be prescribed shall not have layers of
subsidiaries beyond such numbers as may be prescribed.
Explanation.—For the purposes of this clause,—
(a) a company shall be deemed to be a subsidiary company of the holding company even if the
control referred to in sub-clause (i) or sub-clause (ii) is of another subsidiary company of the holding
company;
(b) the composition of a company‘s Board of Directors shall be deemed to be controlled by
another company if that other company by exercise of some power exercisable by it at its discretion
can appoint or remove all or a majority of the directors;
(c) the expression ―company‖ includes any body corporate;
(d) ―layer‖ in relation to a holding company means its subsidiary or subsidiaries;
(88) ―sweat equity shares‖ means such equity shares as are issued by a company to its directors or
employees at a discount or for consideration, other than cash, for providing their know-how or making
available rights in the nature of intellectual property rights or value additions, by whatever name called;
(89) ―total voting power‖, in relation to any matter, means the total number of votes which may be
cast in regard to that matter on a poll at a meeting of a company if all the members thereof or their proxies
having a right to vote on that matter are present at the meeting and cast their votes;
(90) ―Tribunal‖ means the National Company Law Tribunal constituted under section 408;
(91) ―turnover‖ means the aggregate value of the realisation of amount made from the sale, supply or
distribution of goods or on account of services rendered, or both, by the company during a financial year;
(92) ―unlimited company‖ means a company not having any limit on the liability of its members;
(93) ―voting right‖ means the right of a member of a company to vote in any meeting of the company
or by means of postal ballot;
(94) ―whole-time director‖ includes a director in the whole-time employment of the company;
23
THE COMPETITION ACT, 2002
________
ARRANGEMENT OF SECTIONS
________
CHAPTER I
PRELIMINARY
SECTIONS
1. Short title, extent and commencement.
2. Definitions.
CHAPTER II
PROHIBITION OF CERTAIN AGREEMENTS, ABUSE OF DOMINANT POSITION AND REGULATION OF
COMBINATIONS
Prohibition of agreements
3. Anti-competitive agreements.
Prohibition of abuse of dominant position
4. Abuse of dominant position.
Regulation of combinations
5. Combination.
6. Regulation of combinations.
CHAPTER III
7. Establishment of Commission.
8. Composition of Commission.
9. Selection Committee for Chairperson and Members of Commission.
10. Term of office of Chairperson and other Members.
11. Resignation, removal and suspension of Chairperson and other Members.
12. Restriction on employment of Chairperson and other Members in certain cases.
13. Administrative powers of Chairperson.
14. Salary and allowances and other terms and conditions of service of Chairperson and other
Members.
15. Vacancy, etc., not to invalidate proceedings of Commission.
16. Appointment of Director General, etc.
17. Appointment of Secretary, experts, professionals and officers and other employees of
Commission.
CHAPTER IV
DUTIES, POWERS AND FUNCTIONS OF COMMISSION
18. Duties of Commission.
19. Inquiry into certain agreements and dominant position of enterprise.
20. Inquiry into combination by commission.
21. Reference by statutory authority.
21A. Reference by Commission.
22. Meetings of Commission.
1
(e) uses its dominant position in one relevant market to enter into, or protect, other relevant
market.
Explanation.—For the purposes of this section, the expression—
(a) “dominant position” means a position of strength, enjoyed by an enterprise, in the relevant
market, in India, which enables it to—
(i) operate independently of competitive forces prevailing in the relevant market; or
(ii) affect its competitors or consumers or the relevant market in its favour;
(b) “predatory price” means the sale of goods or provision of services, at a price which is
below the cost, as may be determined by regulations, of production of the goods or provision of
services, with a view to reduce competition or eliminate the competitors;
[(c) “group” shall have the same meaning as assigned to it in clause (b) of the Explanation to
1
section 5.]
Regulation of combinations
5. Combination.—The acquisition of one or more enterprises by one or more persons or merger or
amalgamation of enterprises shall be a combination of such enterprises and persons or enterprises, if—
(a) any acquisition where—
(i) the parties to the acquisition, being the acquirer and the enterprise, whose control, shares,
voting rights or assets have been acquired or are being acquired jointly have,—
(A) either, in India, the assets of the value of more than rupees one thousand crores or
turnover more than rupees three thousand crores; or
2
[(B) in India or outside India, in aggregate, the assets of the value of more than five
hundred million US dollars or turnover more than fifteen hundred million US dollars; or]
(ii) the group, to which the enterprise whose control, shares, assets or voting rights have been
acquired or are being acquired, would belong after the acquisition, jointly have or would jointly
have,—
(A) either in India, the assets of the value of more than rupees four thousand crores or
turnover more than rupees twelve thousand crores; or
3
[(B) in India or outside India, in aggregate, the assets of the value of more than two
billion US dollars or turnover more than six billion US dollars; or]
(b) acquiring of control by a person over an enterprise when such person has already direct or
indirect control over another enterprise engaged in production, distribution or trading of a similar or
identical or substitutable goods or provision of a similar or identical or substitutable service, if—
(i) the enterprise over which control has been acquired along with the enterprise over which
the acquirer already has direct or indirect control jointly have,—
(A) either in India, the assets of the value of more than rupees one thousand crores or
1. Ins. by Act 39 of 2007, s. 3 (w.e.f. 20-5-2009).

2. Item (B) shall stand substituted (date to be notified) by s. 4, ibid., to read as under:
“(B) in India or outside India, in aggregate, the assets of the value of more than five hundred million US dollars,
including at least rupees five hundred crores in India, or turnover more than fifteen hundred million US dollars,
including at least rupees fifteen hundred crores in India; or”.
“(B) in India or outside India, in aggregate, the assets of the value of more than two billion US dollars, including at
least rupees five hundred crores in India, or turnover more than six billion US dollars, including at least rupees fifteen
hundred crores in India; or”.
9
1
(ii) the group, to which enterprise whose control has been acquired, or is being acquired,
would belong after the acquisition, jointly have or would jointly have,—
(A) either in India, the assets of the value of more than rupees four thousand crores or
2
[(B) in India or outside India, in aggregate, the assets of the value of more than two
billion US dollars or turnover more than six billion US dollars; or]
(c) any merger or amalgamation in which—
(i) the enterprise remaining after merger or the enterprise created as a result of the
amalgamation, as the case may be, have,—
(A) either in India, the assets of the value of more than rupees one thousand crores or
3
(ii) the group, to which the enterprise remaining after the merger or the enterprise created as a
result of the amalgamation, would belong after the merger or the amalgamation, as the case may
be, have or would have,—
(A) either in India, the assets of the value of more than rupees four-thousand crores or
4
[(B) in India or outside India, the assets of the value of more than two billion US dollars
or turnover more than six billion US dollars.]
Explanation.—For the purposes of this section,—
(a) “control” includes controlling the affairs or management by—
(i) one or more enterprises, either jointly or singly, over another enterprise or group;
(ii) one or more groups, either jointly or singly, over another group or enterprise;
(b) “group” means 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;
1. Item (B) shall stand substituted (date to be notified) by Act 39 of 2007, s. 4, to read as under:
hundred crores in India; or”.
hundred crores in India”.
10
(c) the value of assets shall be determined by taking the book value of the assets as shown, in the
audited books of account of the enterprise, in the financial year immediately preceding the financial
year in which the date of proposed merger falls, as reduced by any depreciation, and the value of
assets shall include the brand value, value of goodwill, or value of copyright, patent, permitted use,
collective mark, registered proprietor, registered trade mark, registered user, homonymous
geographical indication, geographical indications, design or layout-design or similar other
commercial rights, if any, referred to in sub-section (5) of section 3.
6. Regulation of combinations.—(1) No person or enterprise shall enter into a combination which
causes or is likely to cause an appreciable adverse effect on competition within the relevant market in
India and such a combination shall be void.
(2) Subject to the provisions contained in sub-section (1), any person or enterprise, who or which
proposes to enter into a combination, 1[may, at his or its option,] give notice to the Commission, in the
form as may be specified, and the fee which may be determined, by regulations, disclosing the details of
the proposed combination, within 2[seven days] of—
(a) approval of the proposal relating to merger or amalgamation, referred to in clause (c) of
section 5, by the board of directors of the enterprises concerned with such merger or amalgamation,
as the case may be;
(b) execution of any agreement or other document for acquisition referred to in clause (a) of
section 5 or acquiring of control referred to in clause (b) of that section.
3
[(2A) No combination shall come into effect until two hundred and ten days have passed from the
day on which the notice has been given to the Commission under sub-section (2) or the Commission has
passed orders under section 31, whichever is earlier.]
(3) The Commission shall, after receipt of notice under sub-section (2), deal with such notice in
accordance with the provisions contained in sections 29, 30 and 31.
(4) The provisions of this section shall not apply to share subscription or financing facility or any
acquisition, by a public financial institution, foreign institutional investor, bank or venture capital fund,
pursuant to any covenant of a loan agreement or investment agreement.
(5) The public financial institution, foreign institutional investor, bank or venture capital fund,
referred to in sub-section (4), shall, within seven days from the date of the acquisition, file, in the form as
may be specified by regulations, with the Commission the details of the acquisition including the details
of control, the circumstances for exercise of such control and the consequences of default arising out of
such loan agreement or investment agreement, as the case may be.
Explanation.—For the purposes of this section, the expression—
(a) “foreign institutional investor” has the same meaning as assigned to it in clause (a) of the
Explanation to section 115AD of the Income-tax Act, 1961(43 of 1961);
(b) “venture capital fund” has the same meaning as assigned to it in clause (b) of the Explanation
to clause (23 FB) of section 10 of the Income-tax Act, 1961(43 of 1961).
CHAPTER III
7. Establishment of Commission.—(1) With effect from such date4 as the Central Government may,
by notification, appoint, there shall be established, for the purposes of this Act, a Commission to be called
the “Competition Commission of India”.
(2) The Commission shall be a body corporate by the name aforesaid having perpetual succession and
a common seal with power, subject to the provisions of this Act, to acquire, hold and dispose of property,
both movable and immovable, and to contract and shall, by the said name, sue or be sued.
1. The words in brackets shall stand substituted (date to be notified) by Act 39 of 2007, s. 5, to read as “shall”.
2. The words in brackets shall stand substituted (date to be notified) by s. 5, ibid., to read as “thirty days”.
3. Sub-section (2A) shall stand inserted (date to be notified) by s. 5, ibid.
4. 14th October, 2003, vide Notification No. S.O. 1198(E), dated 14th October, 2003.
11
(7) The Commission shall, while determining the “relevant product market”, have due regard to all or
any of the following factors, namely:—
(a) physical characteristics or end-use of goods;
(b) price of goods or service;
(c) consumer preferences;
(d) exclusion of in-house production;
(e) existence of specialised producers;
(f) classification of industrial products.
20. Inquiry into combination by Commission.—(1) The Commission may, upon its own
knowledge or information relating to acquisition referred to in clause (a) of section 5 or acquiring of
control referred to in clause (b) of section 5 or merger or amalgamation referred to in clause (c) of that
section, inquire into whether such a combination has caused or is likely to cause an appreciable adverse
effect on competition in India:
Provided that the Commission shall not initiate any inquiry under this sub-section after the expiry of
one year from the date on which such combination has taken effect.
(2) The Commission shall, on receipt of a notice under sub-section (2) of section 6 1[or upon receipt
of a reference under sub-section (1) of section 21], inquire whether a combination referred to in that
notice or reference has caused or is likely to cause an appreciable adverse effect on competition in India.
(3) Notwithstanding anything contained in section 5, the Central Government shall, on the expiry of a
period of two years from the date of commencement of this Act and thereafter every two years, in
consultation with the Commission, by notification, enhance or reduce, on the basis of the wholesale price
index or fluctuations in exchange rate of rupee or foreign currencies, the value of assets or the value of
turnover, for the purposes of that section.
(4) For the purposes of determining whether a combination would have the effect of or is likely to
have an appreciable adverse effect on competition in the relevant market, the Commission shall have due
regard to all or any of the following factors, namely:—
(a) actual and potential level of competition through imports in the market;
(b) extent of barriers to entry into the market;
(c) level of combination in the market;
(d) degree of countervailing power in the market;
(e) likelihood that the combination would result in the parties to the combination being able to
significantly and sustainably increase prices or profit margins;
(f) extent of effective competition likely to sustain in a market;
(g) extent to which substitutes are available or arc likely to be available in the market;
(h) market share, in the relevant market, of the persons or enterprise in a combination,
individually and as a combination;
(i) likelihood that the combination would result in the removal of a vigorous and effective
competitor or competitors in the market;
(j) nature and extent of vertical integration in the market;
(k) possibility of a failing business;
(l) nature and extent of innovation;
1. The words, brackets and figures in brackets shall stand omitted (date to be notified) by Act 39 of 2007, s. 14.
16
(8) If the Commission does not accept the amendment submitted under sub section (6), then, the
parties shall be allowed a further period of thirty working days within which such parties shall accept the
modification proposed by the Commission under sub-section (3).
(9) If the parties fail to accept the modification proposed by the Commission within thirty working
days referred to in sub-section (6) or within a further period of thirty working days referred to in
sub-section (8), the combination shall be deemed to have an appreciable adverse effect on competition
and be dealt with in accordance with the provisions of this Act.
(10) Where the Commission has directed under sub-section (2) that the combination shall not take
effect or the combination is deemed to have an appreciable adverse effect on competition under
sub-section (9), then, without prejudice to any penalty which may be imposed or any prosecution which
may be initiated under this Act, the Commission may order that—
(a) the acquisition referred to in clause (a) of section 5; or
(b) the acquiring of control referred to in clause (b) of section 5; or
(c) the merger or amalgamation referred to in clause (c) of section 5,
shall not be given effect to:
Provided that the Commission may, if it considers appropriate, frame a scheme to implement its order
under this sub-section.
(11) If the Commission does not, on the expiry of a period of 1[ninety working days from the date of
publication referred to in sub-section (2) of section 29], pass an order or issue direction in accordance
with the provisions of sub-section (1) or sub-section (2) or sub-section (7), the combination shall be
deemed to have been approved by the Commission.
Explanation.—For the purposes of determining the period of 2[ninety working] days specified in this
sub-section, the period of thirty working days specified in sub-section (6) and a further period of thirty
working days specified in sub- section (8) shall be excluded.
(12) Where any extension of time is sought by the parties to the combination, the period of ninety
working days shall be reckoned after deducting the extended time granted at the request of the parties.
(13) Where the Commission has ordered a combination to be void, the acquisition or acquiring of
control or merger or amalgamation referred to in section 5, shall be dealt with by the authorities under any
other law for the time being in force as if such acquisition or acquiring of control or merger or
amalgamation had not taken place and the parties to the combination shall be dealt with accordingly.
(14) Nothing contained in this Chapter shall affect any proceeding initiated or which may be initiated
under any other law for the time being in force.
32. Acts taking place outside India but having an effect on competition in India.—The
Commission shall, notwithstanding that,—
(a) an agreement referred to in section 3 has been entered into outside India; or
(b) any party to such agreement is outside India; or
(c) any enterprise abusing the dominant position is outside India; or
(d) a combination has taken place outside India; or
(e) any party to combination is outside India; or
(f) any other matter or practice or action arising out of such agreement or dominant position or
combination is outside India,
1. The words in brackets shall stand substituted (date to be notified) by Act 39 of 2007, s. 24, to read as “two hundred and
ten days from the date of notice given to the Commission under sub-section (2) of section 6”.
2. The words in brackets shall stand substituted (date to be notified) by s. 24, ibid., to read as “two hundred and ten”.
21
have power to inquire 1[in accordance with the provisions contained in sections 19, 20, 26, 29 and 30 of
the Act] into such agreement or abuse of dominant position or combination if such agreement or dominant
position or combination has, or is likely to have, an appreciable adverse effect on competition in the
relevant market in India 1[and pass such orders as it may deem fit in accordance with the provisions of
this Act].
2
[33. Power to issue interim orders.—Where during an inquiry, the Commission is satisfied that an
act in contravention of sub-section (1) of section 3 or sub-section (1) of section 4 or section 6 has been
committed and continues to be committed or that such act is about to be committed, the Commission may,
by order, temporarily restrain any party from carrying on such act until the conclusion of such inquiry or
until further orders, without giving notice to such party, where it deems it necessary.]
34. [Power to award compensation.] Omitted by the Competition (Amendment) Act, 2007
(39 of 2007) s. 27 (w.e.f. 12-10-2007).
35. Appearance before Commission.—A 3[person or an enterprise] or the Director General may
either appear in person or authorise one or more chartered accountants or company secretaries or cost
accountants or legal practitioners or any of his or its officers to present his or its case before the
Commission.
Explanation.—For the purposes of this section,—
(a) “chartered accountant” means a chartered accountant as defined in clause (b) of
sub-section (1) of section 2 of the Chartered Accountants Act, 1949 (38 of 1949) and who has
obtained a certificate of practice under sub-section (1) of section 6 of that Act;
(b) “company secretary” means a company secretary as defined in clause (c) of sub-section (1) of
section 2 of the Company Secretaries Act, 1980 (56 of 1980) and who has obtained a certificate of
practice under sub-section (1) of section 6 of that Act;
(c) “cost accountant” means a cost accountant as defined in clause (b) of sub-section (1) of
section 2 of the Cost and Works Accountants Act, 1959 (23 of 1959) and who has obtained a
certificate of practice under sub- section (1) of section 6 of that Act;
(d) “legal practitioner” means an advocate, vakil or an attorney of any High Court, and includes a
pleader in practice.
4
[36. Power of Commission to regulate its own procedure.—(1) In the discharge of its functions,
the Commission shall be guided by the principles of natural justice and, subject to the other provisions of
this Act and of any rules made by the Central Government, the Commission shall have the powers to
regulate its own procedure.
(2) The Commission shall have, for the purposes of discharging its functions under this Act, the same
powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a
suit, in respect of the following matters, namely:—
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavit;
(d) issuing commissions for the examination of witnesses or documents;
(e) requisitioning, subject to the provisions of sections 123 and 124 of the Indian Evidence Act,
1872 (1 of 1872), any public record or document or copy of such record or document from any office.
(3) The Commission may call upon such experts, from the fields of economics, commerce,
accountancy, international trade or from any other discipline as it deems necessary, to assist the
Commission in the conduct of any inquiry by it.
1. Ins. by Act 39 of 2007, s. 25 (w.e.f. 20-5-2009).

2. Subs. by s. 26, ibid., for section 33 (w.e.f. 20-5-2009).
3. Subs. by s. 28, ibid., for “complainant or defendant” (w.e.f. 20-5-2009).
4. Subs. by s. 29, ibid., for section 36 (w.e.f. 12-10-2007).
22
1
[43A. Power to impose penalty for non-furnishing of information on combinations.—If any
person or enterprise who fails to give notice to the Commission under sub-section (2) of section 6, the
Commission shall impose on such person or enterprise a penalty which may extend to one per cent. of the
total turnover or the assets, whichever is higher, of such a combination.]
44. Penalty for making false statement or omission to furnish material information.—If any
person, being a party to a combination,—
(a) makes a statement which is false in any material particular, or knowing it to be false; or
(b) omits to state any material particular knowing it to be material,
such person shall be liable to a penalty which shall not be less than rupees fifty lakhs but which may
extend to rupees one crore, as may be determined by the Commission.
45. Penalty for offences in relation to furnishing of information.—2[(1) Without prejudice to the
provisions of section 44, if a person, who furnishes or is required to furnish under this Act any particulars,
documents or any information,—
(a) makes any statement or furnishes any document which he knows or has reason to believe to
be false in any material particular; or
(b) omits to state any material fact knowing it to be material; or
(c) wilfully alters, suppresses or destroys any document which is required to be furnished as
aforesaid,
such person shall be punishable with fine which may extend to rupees one crore as may be determined by
the Commission.]
(2) Without prejudice to the provisions of sub-section (1), the Commission may also pass such other
order as it deems fit.
46. Power to impose lesser penalty.—The Commission may, if it is satisfied that any producer,
seller, distributor, trader or service provider included in any cartel, which is alleged to have violated
section 3, has made a full and true disclosure in respect of the alleged violations and such disclosure is
vital, impose upon such producer, seller, distributor, trader or service provider a lesser penalty as it may
deem fit, than leviable under this Act or the rules or the regulations:
3
[Provided that lesser penalty shall not be imposed by the Commission in cases where the report of
investigation directed under section 26 has been received before making of such disclosure.]
Provided further that lesser penalty shall be imposed by the Commission only in respect of a
producer, seller, distributor, trader or service provider included in the cartel, who 4[has] made the full,
true and vital disclosures under this section:
5
[Provided also that lesser penalty shall not be imposed by the Commission if the person making the
disclosure does not continue to cooperate with the Commission till the completion of the proceedings
before the Commission.]
Provided also that the Commission may, if it is satisfied that such producer, seller, distributor, trader
or service provider included in the cartel had in the course of proceedings,—
(a) not complied with the condition on which the lesser penalty was imposed by the Commission;
or
(b) had given false evidence; or
(c) the disclosure made is not vital,
1. Section 43A shall stand inserted (date to be notified) by Act 39 of 2007, s. 37.
2. Subs. by s. 38, ibid., for sub-section (1) (w.e.f. 20-5-2009).
3. Sub. by s. 39, ibid., for the first proviso (w.e.f. 20-5-2009).
4. Subs. by s. 39, ibid., for “first” (w.e.f. 20-5-2009).
5. The proviso ins. by s. 39, ibid. (w.e.f. 20-5-2009).
25
Reference guide on ex-post evaluation of
competition agencies’ enforcement decisions
April 2016
Reference guide on ex-post evaluation of
competition agencies’ enforcement decisions
Introduction
The enforcement challenge faced by competition agencies is enormous. With limited

information and time competition agencies must evaluate the likely competitive impact of often
unprecedented changes in how markets operate. Horizontal merger analysis, for example, is
necessarily forward-looking. Agencies, by statute, must make predictions about how a proposed
merger will affect competition. Competition agencies combine the best information available at the
time of the transaction with methodologies that have been developed over time to predict how
mergers will affect competition. Periodic ex post analysis of enforcement decisions are one tool that
can help agencies improve future decision making.
An ex-post evaluation is an examination of an enforcement decision that tries to determine the

effects that the decision has had in the market sometime after the decision has been issued. Many
evaluations focus on the effect caused on the prices of the goods and services traded on the market
affected by the decision, but in some cases they also look at changes in other variables, such as
quality, variety, innovation, and entry. Some evaluations rely on econometric techniques to quantify
the sign and magnitude of the changes, others rely on qualitative methods and only try to determine
the direction of these changes. In both cases the evaluations tries to ascertain if there is a link of
causality between these changes and the enforcement decision.
The number of studies of this kind has grown considerably in the last decade. More authorities
are undertaking them (or want to do so, depending on available resources), and a few have already
performed many. Academics are also getting increasingly involved in this area of work. Discussions
with numerous authorities have shown the need to take stock of the existing experience in the field
and to organise it in a manner that would make it easily accessible. With this Guide the OECD aims to
achieve this by providing an introduction to the topic and a source of extensive references to the
work done so far in this area.
Why is there so much interest in ex-post evaluations

of competition enforcement decisions?
First and foremost, an increasing number of competition authorities is interested in the impact
their activities have on markets and on consumers, both to justify their work and their budget to
stakeholders and to improve their internal investigative and decision making process. This is a
general trend that is influencing institutions across the public policy spectrum, not just in the area of
competition enforcement, in many OECD countries.
Indeed ex-post evaluations can help to determine if an intervention (or non-intervention) has
achieved its objectives and, if not, the reasons it failed to do so. This help to better design future
interventions. Such an assessment may cover the whole decision (e.g. was it appropriate to clear a
specific merger or should it have been blocked?), or it may focus only on some elements of it, such
as the effectiveness of the remedies imposed or the actual validity of anticipated market
developments.
Further, the results of these assessments can help authorities to test the validity and the
precision of the quantitative predictive techniques used in the analysis underpinning the decision
REFERENCE GUIDE ON EX-POST EVALUATION OF COMPETITION AGENCIES’ ENFORCEMENT DECISIONS © OECD 2016 3
Report
Of
Competition Law Review Committee
July, 2019
Ministry of Corporate Affairs

Government of India
recommended that the mandatory 30-day timeline for completion of the
phase 1 review procedure provided in Regulation 19(1) of the Combination
Regulations must be included in the Act itself. This timeline would continue
to govern combinations that are not eligible for the proposed Green Channel.
5. DEAL VALUE THRESHOLD FOR COMBINATIONS

5.1. During its discussions on combinations, the Committee observed that in the
last decade the five largest technology companies have made over 400
acquisitions globally.408 As noted by a recent report, some of these acquisitions
have been exceptionally high value, peaking with Microsoft paying $26.2
billion for LinkedIn.409
5.2. The Committee was apprised by the CCI that industry leaders have recognised
the imperative need for ex-ante assessment of acquisitions in the digital space
during a stakeholder consultation on ‘digital markets and competition issues’
organized by CCI on 24 July 2018. The CCI further informed the Committee
that the CCI has set up a Think Tank comprising of technologists, economists
and lawyers to deliberate on the issues that arise in new-age markets. In a
meeting held in November 2018, all members of the think-tank appreciated the
need for looking at acquisitions in the digital space more carefully.
5.3. The Committee discussed that most of these acquisitions in digital markets
derive value from data or some business innovation held by the target. In such
acquisitions, the target may not have a huge asset base and may be offering
products/services that are either free or generate insignificant turnover. This
may be because the business model of companies in digital markets is often
such that they do not generate any significant revenue for a number of years,
focusing initially on user growth.410 In such instances, the value of the target’s
sales is a rather poor indicator of the transaction’s significance for competition.
Against this background, the Committee discussed the adequacy of the existing
asset and turnover based thresholds for notification of combinations provided
in Section 5 of the Act.
408 Digital Competition Expert Panel (UK), ‘Unlocking digital competition’ (March 2019), page 12
<https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data
/file/785547/unlocking_digital_competition_furman_review_web.pdf> accessed 02 June 2019.
409 Ibid, para 3.44.
410 Digital Competition Expert Panel (UK), ‘Unlocking digital competition’ (March 2019), page 94
<https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data
/file/785547/unlocking_digital_competition_furman_review_web.pdf> accessed 06 June 2019.
128
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 10678 OF 2016

SCM SOLIFERT LIMITED & ANR. ..APPELLANT(S)
VERSUS
COMPETITION COMMISSION OF INDIA ..RESPONDENT(S)
J U D G M E N T
ARUN MISHRA, J.
1. The appellants SCM Solifert Limited and another are in
appeal under section 53T of the Competition Act, 2002 (hereinafter
referred to as “the Act”) as against the final judgment and order
dated 30.08.2016 passed in Appeal No.59 of 2015 by the
1
6(2A) which provides that no combination shall come into effect
until 210 days have passed from the date of notice or passing of
orders under section 31 by the Commission, whichever is earlier.
The provisions made in Regulation 5(8) also buttresses the
aforesaid conclusion. Notice of Section 6(2) is to be given prior to
consummation of the acquisition. Ex post facto notice is not
contemplated under the provisions of section 6(2). Same would be
in violation of the provisions of the Act.
19. The expression “proposes to enter into a combination” in
section 6(2) and further details to be disclosed in the notice to the
Commission are of the ‘proposed combination’ and the specific
provisions contained in section 6(2A) of the Act provides that no
combination shall come into effect until 210 days have passed from
the date on which notice has been given or passing of orders under
section 31 by the Commission, whichever is earlier. The intent of
the Act is that the Commission has to permit combination to be
formed, and has an opportunity to assess whether the proposed
combination would cause an appreciable adverse effect on
competition. In case combination is to be notified expost facto for
approval, it would defeat the very intendment of the provisions of
13
Competition Commission of India
Combination Division
2nd April, 2013
Combination Registration No. C-2013/02/109
Order under Section 43 A of the Competition Act, 2002
1. On 4th February, 2013, the Competition Commission of India (hereinafter referred to as

the “Commission”) received a notice under sub-section (2) of Section 6 of the
Competition Act, 2002 (hereinafter referred to as the “Act”), given by Titan International,
Inc. (hereinafter either referred to as “Titan International” or “Acquirer”) and Titan
Europe PLC (hereinafter referred to as “Titan Europe”) (hereinafter Titan International
and Titan Europe are collectively referred to as the “parties”).
2. The combination involves the acquisition of the entire share capital of Titan Europe by
Titan International, as a consequence of which Titan International has indirectly acquired
35.91 per cent equity share capital of Wheels India Limited (hereinafter referred to as
“Wheels India”) from Titan Europe. As stated in the notice, on 10th August, 2012, the
parties announced that they had reached an agreement on the terms of a recommended
share offer for the acquisition of the entire share capital of Titan Europe.
3. Along with the notice, the parties also submitted an application for condonation of delay
as the notice was given to the Commission beyond the time period specified in sub-
section (2) of Section 6 of the Act. The Commission considered the application for
condonation of delay, in its meeting held on 20th February, 2013 and admitted the belated
filing in terms of Regulation 7 of the Competition Commission of India (Procedure in
regard to the transaction of business relating to combinations) Regulations, 2011 without
prejudice to the action that may be taken under Section 43A of the Act. The Commission
in the said meeting inter alia decided to initiate separate proceeding regarding imposition
of penalty under Section 43A of the Act as the notice was not given within the time
specified in sub-section (2) of Section 6 of the Act and accordingly, a show cause notice
dated 21st February, 2013, in terms of Section 43A of the Act read with Regulation 48 of
the Competition Commission of India (General) Regulations, 2009 was issued to the
Acquirer.
4. On 8th March, 2013, the Commission received the reply of the parties to the show cause
notice wherein it was inter-alia submitted that:
“……. The parties to the Combination are based in the United States of America
and United Kingdom, respectively. The acquisition of the entire share capital of
Titan Europe by Titan International resulted in the indirect acquisition of the
35.91 per cent equity share capital in Wheels India, which was held by Titan
Page 1 of 4
Combination Registration No. C-2012/02/40 noted that any person or enterprise, who or
which proposes to enter into a combination, has to mandatorily give a notice to the
Commission under sub-section (2) of Section 6 of the Act prior to entering into a
combination.
7. In the instant case, the parties had reached an agreement on the terms of the
recommended share offer for the acquisition of entire share capital of Titan Europe on
10th August, 2012 and therefore, in terms of sub-section (2) of Section 6 of the Act, the
Acquirer ought to have given the notice to the Commission within thirty days of reaching
the said agreement. However, the Acquirer failed to give notice to the Commission in
accordance with sub-section (2) of Section 6 of the Act as, already noted earlier, the
Acquirer gave the notice to the Commission only on 4th February, 2013 with a delay of
around 147 days and that too after the combination had already taken effect.
8. It has been submitted that the Acquirer was unaware that a filing or notification under
sub-section 2 of Section 6 of the Act with respect to the indirect acquisition of shares of
Wheels India, by Titan International would be triggered in India and therefore, the
Acquirers’ omission to comply with sub-section 2 of Section 6 of the Act in the instant
matter was altogether inadvertent and unintentional. However, considering the fact that
the said notice as given by the parties was not only given belatedly but also after the
combination had already taken effect, which is in contravention of the relevant provisions
of the Act, the submission made by the parties, for not levying any penalty under Section
43A of the Act is not agreed to.
9. As per details provided in the notice, the value of assets and turnover of Titan
International, Titan Europe and Wheels India are as follows:
Details of Assets and Turnover

Enterprise(s) Asset Turnover
Titan International* 1.010 1.487
(in $ billion)
Titan Europe* 0.746 0.790
(in $ billion)
Wheels India**
(in INR crore) 1082.99 2235.09
*for the year ended 31.12.2011; ** for the year ended 31.03.2012
10. In terms of Section 43A of the Act, if any person or enterprise fails to give notice under
sub-section (2) of Section 6 of the Act, the Commission shall impose on such person or
enterprise a penalty which may extend to one per cent of the total turnover or the assets,
whichever is higher, of such a combination. It is, therefore, observed that although, in
terms of Section 43A of the Act, the maximum penalty that may, therefore, be imposed
on the Acquirer comes to approximately INR 145 crore1, however, considering the fact
1
Represent one per cent of the total turnover of Titan International, Titan Europe and Wheels India. Turnover of Titan International and
Titan Europe has been converted into INR taking US$ 1= INR 54.
Page 3 of 4
that (a) both Titan International and Titan Europe are based outside India; (b) the said
combination resulted from the acquisition of one foreign enterprise based outside India by
another foreign enterprise based outside India; and (c) the parties, notwithstanding the
delay, have voluntarily given the notice under sub-section (2) of Section 6 of the Act; the
Commission considers it appropriate to take a lenient view and impose a smaller amount
of penalty on the Acquirer under the provisions of Section 43A of the Act. Therefore, in
exercise of the powers under Section 43A of the Act, a penalty of INR 1,00,00,000/- (INR
One Crore only) is imposed on the Acquirer. The Acquirer shall pay the penalty within 60
days from the date of receipt of this order.
11. The Secretary is directed to communicate to the Acquirer accordingly.
Page 4 of 4
Fair Competition
For Greater Good

(Combination Registration No. C-2014/06/181)
10.02.2015
Order u/s 43A of the Competition Act, 2002 (“Act”) in the notice given u/s 6 (2) of
the Act given by:
(a) Zuari Fertilisers and Chemicals Limited (“ZFCL”); and
(b) Zuari Agro Chemicals Limited (“ZACL”).
1. On 11th June 2014, the Competition Commission of India (“Commission”) received a

notice under sub-section (2) of Section 6 of the Act, given by ZFCL and ZACL
(hereinafter ZFCL and ZACL collectively referred to as the “Acquirers”) pursuant to a
shareholders agreement dated 12th May 2014, entered into between the Acquirers, and
the UB group comprising United Breweries (Holdings) Limited, Kingfisher Finvest
India Limited and McDowell Holdings Limited (“Shareholders Agreement”).
2. As per the information provided in the notice, the proposed combination related to
acquisition of upto 3,08,13,939 equity shares of Mangalore Chemicals and Fertilizers
Limited (“MCFL”) (representing additional 26 per cent stake in MCFL) by the
Acquirers through a competing open offer, as per the relevant provisions of Securities
and Exchange Board of India (Substantial Acquisition of Shares & Takeovers)
Regulations, 2011 (“Takeover Regulations”) (“Open Offer”). The public
announcement (“PA”) for the Open Offer was issued, inter alios, by the Acquirers on
12th May 2014. Hereinafter, the Acquirers and MCFL are collectively referred to as
the “Parties”.
3. In this regard, the Commission observed that the Acquirers held approx. 16.43 per cent
in the equity share capital of MCFL prior to giving the abovesaid notice under sub-
section (2) of Section 6 of the Act. It was found that the Acquirers had acquired the
aforesaid 16.43 per cent (approx.) in the equity share capital of MCFL during the
period from April 2013 to July 2013 in four tranches acquired on 2nd April 2013
(“Tranche 1”), 10th July 2013 (“Tranche 2”), 11th July 2013 (“Tranche 3”) and 12th
July 2013 (“Tranche 4”) respectively (“Acquisition”). The Commission also observed
Page 1 of 7
Fair Competition
For Greater Good
not notifiable provided that the proposed acquisition of shares or voting rights does not
entitle the acquirer to hold 25 per cent or more of the total shares or voting rights,
directly or indirectly, in the target enterprise and does not lead to a change of control
and is made (i) solely as an investment, or (ii) is in the ordinary course of business.
7. It is observed that the categories of combinations listed in Schedule I to the

Combination Regulations must be interpreted in light of the Commission’s objectives
(listed in Section 18 of the Act) and the intent of Schedule I (expressed in Regulation 4
of the Combination Regulations). This means that the categories of combinations listed
in Schedule I as normally not notifiable ought not to include combinations which
envisage or are likely to cause a change in control or are of the nature of strategic
combinations including those between competing enterprises or enterprises active in
vertical markets.
8. In the instant case, the Acquirers have claimed that the Acquisition was ‘solely as an
investment’. In this regard, it is observed that the phrase ‘solely as an investment’
indicates ‘passive investment’ and any investment in a target enterprise which is done
with a strategic intent cannot be treated as ‘solely as an investment’. Therefore, to
qualify for ‘exemption’ under Item 1 of Schedule I to the Combination Regulations, an
acquisition must not have been made with an intention of participating in the
formulation, determination or direction of the basic business decisions of the target.
Further, it is observed that while such participation may be through various means
including voting rights, agreements, representation on the boards of the target
enterprise or its affiliate companies, any of the affirmative or veto rights in the target
enterprise or its affiliate companies, however in this regard, it is also noted that the
absence of evidence of written and binding documents between parties does not
necessarily preclude the existence of strategic intent behind an acquisition which is a
combination under the provisions of Section 5 of the Act. Therefore, other factors
including surrounding circumstances must also be taken into consideration to
determine whether the proposed acquisition falls under Item 1 of Schedule I to the
Combination Regulations.
9. In the instant case, the Acquirers have stated that the Acquisition was solely as an
investment. However, it is observed that the Acquirers have not been able to present
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purchase

SEBI (Substantial Acquisition of Shares and Takeovers)

5. The appellants filed a notice disclosing details of the first

the public announcement pursuant to the Regulations, 2011 for

the acquisition of 1.7 percent of the MCFL. The Competition

initiate penalty proceedings against the appellants under section

6. It was the case on behalf of the appellants that first

Entry I of Schedule I of the CCI (Procedure in regard to the

Transaction of Business Relating to Combinations) Regulations,

account of J.M. Financial Services Limited. The sole purpose of

entering into an escrow agreement was that the transaction was

not consummated prior to approval of the Commission. The

Commission has imposed the penalty of 2 crores; the appellate

Schedule 1. The interpretation made by the Commission of the

Entry 1 of Schedule 1 is incorrect. With respect to the second

of Escrow Account was to ensure that the appellants could not

COMPETITION COMMISSION OF INDIA

Order under Section 31(1) of the Competition Act, 2002

1. On 12.08.2014, the Competition Commission of India (hereinafter referred to as

2. In terms of Regulation 14 of the Competition Commission of India (Procedure in

6. It is also noted that an intimation of change to the notice under Regulation 16 of

7. As regards the transfer of EPP segment of Abbott in Europe, Japan, Australia,

9. In this regard, it is observed that an acquisition of shares or voting rights, even if

engaged in activities at different stages or levels of the production chain. Such

12. This approval is without prejudice to any other legal/statutory obligations as

Competition Appeal (AT) No. 01 of 2022

Notice given under Section 6(2) of the Competition Act, 2002 by

Mr. Augustine Peter

Appearances during Oral hearing on 24.07.2018 for Bharti Airtel Limited:

Order under Section 43A of the Competition Act, 2002

1. On 16.10.2017, the Competition Commission of India (“Commission”) received a notice

Be it enacted by the Senate and House of Representatives of the

11 CLAYTON ACT Sec. 7

that such filing is a true and complete description of such commu-

Sec. 7A CLAYTON ACT 12

of the country, the effect of such acquisition, of such stocks or as-

Ex-post Assessment of Merger Control

Document prepared by Lear for the Competition and Markets Authority

Lear – www.learlab.com 118

The Competition Commission of India (Procedure in regard to the transaction of business

New Delhi, the 11th day of May, 2011

No. 1-1/Combination Regulations/2011-12/CD/CCI.--- In exercise of the powers conferred by

1. Short title and commencement.-

(1) In these regulations, unless the context otherwise requires:-

(b) “Combination” means and includes combination as described in section 5 of the

(c) “Commission” means the Competition Commission of India established under

1. Ins. by Act 39 of 2007, s. 3 (w.e.f. 20-5-2009).

1. Ins. by Act 39 of 2007, s. 25 (w.e.f. 20-5-2009).

The enforcement challenge faced by competition agencies is enormous. With limited

An ex-post evaluation is an examination of an enforcement decision that tries to determine the

Why is there so much interest in ex-post evaluations

Ministry of Corporate Affairs

5. DEAL VALUE THRESHOLD FOR COMBINATIONS

1. The appellants SCM Solifert Limited and another are in

referred to as “the Act”) as against the final judgment and order

dated 30.08.2016 passed in Appeal No.59 of 2015 by the

The provisions made in Regulation 5(8) also buttresses the

consummation of the acquisition. Ex post facto notice is not

19. The expression “proposes to enter into a combination” in

Commission are of the ‘proposed combination’ and the specific

provisions contained in section 6(2A) of the Act provides that no

the Act is that the Commission has to permit combination to be

formed, and has an opportunity to assess whether the proposed