GCR Merger Remedies Guide: Fourth Edition India Chapter - Shardul Amarchand Mangaldas & Co

GCR merger remedies guide: Fourth edition India chapter - Shardul Amarchand Mangaldas & Co 04/12/23, 7:54 PM
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Introduction
This chapter addresses some salient features of the law relating to remedies in merger cases in India. Competition Law
Competition law in India is governed by the Competition Act 2002 (the Act) and a number of regulations. Section 5 Dispute Resolution
of the Act states that acquisitions, mergers and amalgamations crossing specified assets or turnover thresholds
Projects & Project Finance
(collectively referred to as ‘combinations’) must be notified in advance to the Competition Commission of India
(CCI). Detailed provisions on the handling of notifications are contained in the Procedure in Regard to the
Capital Markets
Transaction of Business Relating to Combinations Regulations 2011, as last amended in November 2020 (the
Combination Regulations). Section 6 of the Act prohibits entry into a combination that causes or is likely to cause
Tax
an appreciable adverse effect on competition (AAEC) within the relevant market in India. Such combinations are
void under the Act. Intellectual Property
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Author
John Handoll
Since the Indian merger control regime came into force in June 2011, there have been more than 850 filings. To National Practice Head
date, no combination has been prohibited. The vast majority of notified combinations have raised no competition
concerns. However, in a relatively small number of cases – around 40 to date – remedies (referred to as
‘modifications’ in the Act) have been required to secure clearance in Phase I or, after investigation, in Phase II. All
these cases may be found in the ‘Combinations’ part of the CCI’s website.[1] There has been an active use by the CCI
of its power to require remedies to address competition concerns before clearance. Thirteen published cases have
involved divestiture to address horizontal overlap concerns,[2] two of which – Bayer/Monsanto and Canary/Intas –
also including non-structural remedies, and one – Metso/Outotec – involving a quasi-structural remedy.[3] In the
Schneider Electric case, unusually, non-structural remedies alone were used to address horizontal overlap
concerns.[4] One case, PVR, involved the exclusion of certain business from the scope of the proposed combination.
[5] Eight cases have involved using non-structural remedies to address access concerns,[6] spillover effects[7] and
consumer protection issues.[8] Sixteen cases have been exclusively concerned with non-compete clauses.[9] In
Shweta Shroff Chopra
Hyundai and Kia,[10] non-structural remedies were used to address the risk of discrimination by a transport services
provider in which the two original equipment manufacturers (OEMs) sought to invest. Partner
Some of the cases have involved global mergers subject to review in multiple jurisdictions.[11] The multi-
jurisdictional elements have generally not been addressed in the CCI’s published orders. However, in
Dow/DuPont[12] and Linde/Praxair,[13] the CCI found that a remedy accepted by the European Commission would
address an Indian AAEC concern. Similarly, in Abbott Laboratories,[14] the CCI noted that the remedy offered by
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allowing it to do so.
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competitive harm in its choice of remedies. The main elements of divestiture remedies are briefly addressed. The Partner
framework for securing compliance with modifications is then considered.
Procedures
A broad distinction may be drawn between modifications in the Phase I review, where the parties alone may offer
modifications to the CCI, and modifications in the Phase II review, where the CCI will take the lead in proposing
modifications. However, there is a ‘grey zone’ after Phase I has ended and before an investigation starts under
Phase II, during which parties can offer modifications.
With respect to the notifiability of combinations, in June 2017 the Indian government removed the requirement to
notify combinations within 30 calendar days of the relevant trigger event.[16] This has not only made it easier for
parties to think through possible modifications in advance, but also may help parties in coordinating their approach
when filings are required in several jurisdictions.
Phase I review
In Phase I, the parties may voluntarily offer modifications to avoid the transaction moving to a Phase II review.[17]
The CCI will evaluate and, where appropriate, require the parties to accept the modification. There are usually
discussions between the parties and the CCI before the CCI accepts the proposals. Additional time of up to 15 days
needed by the CCI to evaluate the offered modification is not included in the 30-working-day time limit for Phase I
and the overall 210-day period for the CCI to approve or prohibit a combination.
The ‘grey zone’

There is a ‘grey zone’ between the formation of a prima facie opinion that a combination will have an AAEC and the
decision to launch an investigation. Under Section 29(1) of the Act, the CCI will issue a ‘show cause’ notice to the
parties asking them to respond as to why an investigation should not be conducted. Up to October 2018, there
were no specific provisions in the Combination Regulations addressing the making of modification proposals in the
response; however, the CCI accepted that the parties could then offer modifications that could result in clearance
without the CCI proceeding to formal publication and investigation. This happened in Mumbai International
Airport,[18] Nippon Yusen Kabushiki [19] and China National Agrochemical Corporation.[20] In PVR,[21] commitments
were offered in response to the ‘show cause’ notice and some of these commitments were accepted by the CCI in
its final order. This possibility of offering modifications was formalised in October 2018 when the Combination
Regulations were amended to allow the parties, with their response to the ‘show cause’ notice, to offer
modifications. The CCI itself is now keen to approve remedies without progressing the investigation to Phase II.
Recent CCI decisions, such as ZF Friedrichshafen,[22] Canary/Intas[23] and Metso/Outotec[24] are all indicative of
this trend. The additional time of up to 15 days needed by the CCI to evaluate the offered modification is excluded
from the statutory periods for the CCI to approve or prohibit a combination.
Phase II review
If, following the parties’ response to the ‘show cause’ notice, the CCI decides to conduct an investigation, the CCI
may itself propose modifications to the parties if it considers that these may eliminate the AAEC.[25] Although the
parties have an opportunity to accept the remedies or propose amendments to the CCI proposal, the CCI has the
whip hand and has, on occasion, adopted a ‘take it or leave it’ approach.
In all cases to date, the CCI has tailored the remedies to the specific circumstances, often after considerable
negotiation on remedies during the Phase II investigation.
A number of possible outcomes are provided for in the Act.
First, the parties may accept the modification proposed.[26] If they do so, they must carry it out within the period
specified by the CCI; if they fail to do so, the combination will be deemed to have an AAEC, and the CCI will deal
with it in accordance with the Act.[27] This has happened in only two cases: Dow/DuPont[28] and Linde/Praxair.[29]
Second, if the proposed modification is not accepted within 30 working days and the parties do not propose any
amendment within that period, the combination will be deemed to have an AAEC and the CCI will deal with it in
accordance with the Act.[30] This has not happened to date.
Third, if the parties do not accept the CCI’s proposal, they may, within 30 working days, submit an amendment;[31] if
the CCI agrees with the amendment submitted, it shall, by order, approve the combination.[32] This occurred in
Sun/Ranbaxy,[33] Holcim/Lafarge,[34] PVR,[35] Bayer/Monsanto[36] and Schneider Electric.[37]
In Agrium/PotashCorp,[40] the parties appealed to the National Company Law Appellate Tribunal (NCLAT) against a
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modification. The NCLAT granted a six-week extension. After discussions between the parties and the CCI, the
parties submitted a new proposal that was accepted by the CCI, which noted that this did not have a material effect
on the CCI’s original proposed amendment. The NCLAT held that the proposed modified terms be treated as
approved by it and disposed of the appeal.
Market-testing remedies
Unlike in the European Union, in India there is no formal process of market-testing remedies. However, the CCI may
call for information from any enterprise while enquiring whether a combination has caused or is likely to cause an
AAEC.[41] It has frequently availed of this possibility in Phase I reviews. In Phase II, the parties are required to
publish details of the combination and the CCI may invite any affected person to file written objections.[42]
Although written objections have frequently been received in Phase II reviews, it does not appear from the
published decisions that the CCI has tried to market-test any proposed remedies. However, in PVR,[43] the CCI did
seek information from real estate developers on the timing of likely entry into the multiplex cinema market and
took this into account in assessing the scope of the remedy.
Addressing competitive harm: the CCI orders

Competitive harm is addressed in India in terms of AAEC. The term AAEC is not defined in the Act and there are no
general guidelines as yet. The factors to be taken into account by the CCI in determining whether a combination has
an AAEC are set out in Section 20(4), and a couple of these factors describe competitive harm.
The prospective competitive harm identified by the CCI is, of course, critical in the choice of remedy. In some cases,
the CCI has set out in detail the competitive harm it has identified and the factors taken into account in arriving at
this conclusion, and shown how the remedies address the harm.
Divestiture cases
In a number of cases, the CCI has accepted or proposed structural remedies where a proposed combination would
result in high combined market shares and unacceptable increases in levels of concentration. In all these cases, the
CCI has not followed a ‘one size fits all’ approach but has tailored the remedies to the specific circumstances of each
case. ‘Divestiture’ may be of products, businesses or shareholdings. Structural remedies akin to divestiture include
commitments to exit a business or not to re-enter a market.
A number of cases have involved commitments offered by the parties in Phase I. In ZF Friedrichshafen,[44] the
parties had combined market shares of 60 to 75 per cent, 45 to 55 per cent and 20 to 30 per cent in various steering
systems markets. The acquirer voluntarily committed to divest its shareholding in a joint venture (JV) it had with
another parts supplier, which would leave it with an insignificant market share. In Abbott Laboratories,[45] the CCI
found that the combined market shares of the parties in the relevant medical devices market was 90 to 100 per
cent, with the other competitor having zero to 5 per cent. The CCI considered that this enhanced the merger
entity’s market power and noted that the market was already highly concentrated. The proposal to divest the
business of the target in the relevant market on a worldwide basis would remove the overlap between the parties in
India and address its concerns.
FMC[46] involved a proposed combination following on from the commitment in Dow/DuPont to divest certain crop
protection businesses (see below). The CCI identified five overlapping markets in which – taking into account high
combined market shares, substantial Herfindahl–Hirschman index increments and distantly placed competitors –
market power might be enhanced. The CCI accepted that its concerns could be addressed by the divestiture of
certain agrochemicals and associated undertakings not to re-enter the market or sell products in India.
In China National Agrochemical Corporation,[47] the CCI identified a number of overlapping fungicide and pesticide
markets about which it had AAEC concerns, given the combined market shares, the position of the competitors and
high entry barriers. The CCI accepted the parties’ proposal to divest the relevant products sold by the target in
India. Depending on the product, the target would cease to be a competitor, or its market share would become
negligible (zero to 5 per cent), or the combined market share would reduce to acceptable levels (from 30–40 per
cent to 20–25 per cent).
Other cases have involved divestitures after the Phase II investigation process. In Sun/Ranbaxy,[48] the CCI found
that the merger of two pharmaceutical companies was likely to have an AAEC in respect of seven overlapping
products. For each product, the merger would result in the elimination of a significant competitor and a
corresponding reduction in other significant competitors (from three to two, or from four to three). The CCI found
that the merger would result in a near monopoly in two markets and in strengthening the combined entity’s market
position in another. In considering a fitting remedy, the CCI stated that the aim of a modification was to maintain
specified products.
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was likely to have an AAEC in the market for grey cement in the eastern region of India. In assessing unilateral
effects, the CCI took account of the significant increase in the level of concentration, the absence of buyer power,
the lack of significant constraints by competitors and significant entry barriers. In terms of coordinated effects, the
CCI factored in the prevailing market structure, the oligopolistic nature of the industry, other factors
(homogeneous product, small sale transactions and entry barriers) and the increase in the four-firm concentration
ratio (CR4). It also noted that the industry was prone to collusion. It further considered and rejected efficiency
arguments. The CCI considered that both unilateral and coordinated effects could be eliminated by divestiture.
This involved ascertaining in some detail the extent of divestiture and determining the specific assets to be
divested.
In Dow/DuPont,[50] the CCI had AAEC concerns in relation to three products and sets of products.
First, in relation to a fungicide for grapes, the CCI found that the parties had market shares of 30 to 35 per cent and
5 to 10 per cent, that there was an increase in concentration in a moderately concentrated market, that
competitors were distantly placed, that there were entry barriers (research, field trials and multiple approvals) and
that small farmers had no countervailing power. The CCI found that a particular formulation that was being
discontinued accounted for most of one party’s sales. It proposed that the parties that undertook the
commercialisation of the product should cease and not recommence, and withdraw registration, cancel trademarks,
and not sell or supply in India.
Second, in relation to research and development (R&D) in crop protection products, the CCI considered that the
proposed merger might adversely affect the Indian crop protection market since considerable R&D activity took
place outside India and this might lessen the rate at which new products came to India. The CCI found that this
concern would be addressed by a global divestiture offered to the European Commission. This is a rare case in
which the CCI has explicitly found that a remedy accepted elsewhere effectively addresses a concern of an AAEC in
India.
Finally, in relation to a particular polyethylene product, the CCI had AAEC concerns given the parties’ quite high
market shares of 10 to 15 per cent and 25 to 30 per cent, the increase in concentration in a moderately
concentrated market and the distant placing of other competitors. As such, the CCI proposed the transfer of Dow’s
business in the product in India to an independent and unconnected third party.
Agrium/PotashCorp[51] involved the proposed amalgamation of two major fertiliser companies. Both supplied in
India through a JV, Canpotex, in which they and a third party, Mosaic, had joint control. The CCI found that the
reduction in shareholders from three to two would mean that each would be constrained by one rather than two
shareholders. This would lead to a greater alignment of interests and incentives. The combination would thus lead
to the strengthening of Canpotex and this would affect competition dynamics.
PotashCorp also had minority shareholdings in three companies; in two of these, APC and SQM, it had joint control,
and the CCI could not rule out the possibility that it had the ability to materially influence the policies of the third,
ICL. The three companies would thus come under the joint control of, or be materially influenced by, Agrium and
PotashCorp.
The CCI considered that the proposed combination would be likely to have an AAEC in the market for potash in
India. Canpotex and the three companies had 45 to 50 per cent of the Indian potash market, with two other
significant players having shares of 20 to 25 per cent. Any further increase in concentration in an already highly
concentrated market could lead to adverse competitive effects. The combination would strengthen structural links
between the parties with regard to the management and control of Canpotex. The CCI also considered that the
proposed combination denied the market the opportunity to create situations in which it could have benefited from
the probable disintegration of the JV, thereby reinforcing the coordinated effects. The CCI also rejected arguments
that Indian Potash Limited had significant buyer power and that Canpotex was a price taker.
The CCI considered that, if the parties divested PotashCorp’s shareholding in the three companies, it would create
three independent competitors in the Indian market, which would be likely to have the ability and incentive to
compete more aggressively for gaining market share in India. After some exchanges between the CCI and the
parties, and a detour to the NCLAT (see above), the parties accepted divestiture of Potash’s shareholdings in the
three companies. The case is remarkable as it involved the divestment of assets located entirely outside India.
various vegetable hybrid seeds. The CCI considered that these concerns would be addressed by a set of
divestitures, requiring Bayer to divest its non-selective herbicides business, its global broad crop and crop seeds
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indirect 26 per cent shareholding and rights in an Indian company, which would eliminate the parties’ overlap in the
commercialisation of Bt cotton seeds, hybrid rice seeds and hybrid millet seeds.
In Linde/Praxair,[53] the CCI found that the proposed combination of the two international gas companies would be
likely to lead to an AAEC in a number of gas markets in India. Further to its Phase II review, it considered that these
concerns would be eliminated by the divestment of certain plants and cylinder filling stations of the parties as well
as of Linde India’s shareholding in a JV. AAEC concerns in relation to Helium were addressed by divestitures
accepted by the European Commission.
In a case involving ZF Friedrichshafen’s indirect acquisition of a 100 per cent shareholding in WABCO Holdings Inc,
[54] the CCI found that the parties overlapped in the manufacture and sale of components forming part of brake and
clutch systems used in light and heavy commercial vehicles.
In assessing the competition implications of the proposed transaction regarding brake and clutch systems in a show
cause notice, the CCI found at first sight that the parties together constituted the substantial supply of brake and
clutch components, or systems, for commercial vehicles in India. The proposed combination was likely to result in
the integration of two competing brake and clutch component portfolios for commercial vehicles, resulting in a
strong systems player. This would be likely to result in a reduced degree of countervailing power of OEMs, high
prices and barriers for new entrants.
Before the issuing of the show cause notice, the parties had offered behavioural remedies largely in the nature of a
firewall in Brakes India – the JV through which the acquirer substantially conducted its Indian business – for a five-
year period to avoid coordination with WABCO. The CCI considered that these were not sufficient to drop the
inquiry. After issuance of the show cause notice, the acquirer offered modifications, including the divestment of its
shareholding in Brakes India, ring-fencing pending divestment and an undertaking that it would have no influence
on Brakes India in the future. The CCI considered the proposed divestment to be a clean and efficient remedy
sufficient and proportionate to address the above concerns.
Transfer of exclusive, irrevocable licence

In Metso/Outotec,[55] the parties had combined market shares of 35 to 40 per cent in the segment of equipment for
iron ore pelletising (IOP) and the pooled bidding data suggested that the parties were close competitors, based on
bidding frequency, win-loss and runner-up analyses. The CCI also observed that, owing to the nature of the market,
the transaction would limit the number of suppliers in the IOP segment, reduce innovation, reduce the extent of
countervailing buying power of customers and result in the creation of a strong integrated entity. To address the
CCI’s concerns, the parties submitted a voluntary remedy proposal to transfer its India business by way of an
exclusive and irrevocable licence to a suitable buyer, for use in India only. This was offered as a quasi-structural
remedy by the parties, as the transfer of the IOP technology would effectively result in a transfer of Metso’s IOP
capital equipment business, which would in turn effectively eliminate the problematic overlap between the parties
in the IOP segment in India and allow the emergence of a new competitor. This is the first case in which the CCI has
accepted the transfer of rights for a technology as a remedy to address competition concerns.
Addressing issues of common ownership

In Canary/Intas,[56] the CCI noted that the portfolio entities of the acquirers and the target overlapped in various
segments (based on formulations) in the pharmaceutical sector and that the combined market shares for certain
segments exceeded 30 per cent. The acquirers had common interests in the target and one of the target’s main
competitors. The CCI observed that these common interests would give the acquirers the ability to pursue
anticompetitive conduct in the concentrated markets. To avoid this alleged potential for coordinated behaviour, the
parties offered a set of voluntary modifications to the CCI, including removal of the director appointed by the
acquirers on the board of the target’s competitor and not to exercise veto rights in the target’s competitor in
relation to certain strategic matters. The CCI accepted the proposal of the parties, noting that the proposal would
address its AAEC concerns in India. This is a landmark decision since it is the first case in which the CCI imposed a
remedy in a minority acquisition by a private equity fund.
PVR
This case[57] was concerned with PVR’s proposed acquisition of the film exhibition business of DLF Utilities Limited.
The CCI identified AAEC concerns in relation to South Delhi, Noida and Gurgaon, and in relation to cooperation and
non-compete agreements[58] between the parties.
innovate. There was thus a high likelihood of the parties being able to significantly and sustainably increase prices
or profit margins. PVR offered commitments for each area to terminate an agreement with the seller for the
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effective competition in only two or three years’ time were addressed by commitments not to expand for three
years and not to acquire any direct or indirect ownership, influence or interest over the other party for five years.
In South Delhi, the CCI found that:

there was a highly concentrated market with a significant increase in the level of concentration;
the combination would result in the removal of a vigorous head-to-head competitor;
there was no adequate competitive constraint by competitors;
there was limited scope for new entry;
efficiencies were not combination-specific;
there was low countervailing buyer power; and
there was very limited incentive by the acquirer to innovate.
There was thus a high likelihood of the parties being able to significantly and sustainably increase prices or profit
margins. PVR offered a package of behavioural commitments, including price caps, to address these concerns, but
these were rejected by a majority of the CCI, which considered that the remedies would not adequately replicate
the outcomes of a competitive market and would be difficult to formulate, implement and monitor. The CCI then
proposed that the parties should divest specified target assets in South Delhi. However, in an amendment, PVR
proposed exclusion of a narrower range of assets from the scope of the agreement, which the CCI accepted would
result in PVR having a lower market share post-combination and in a reduction in market concentration. PVR also
agreed to a freeze on expansion for five years and not to acquire any direct or indirect influence, ownership or
interest over the assets for five years. For its part, the seller agreed that the assets would continue to provide
effective competition for five years.
Further, the CCI considered that a proposed cooperation agreement between the parties in relation to the
management and operation of multiplex spaces in malls developed by the seller was not integral or necessary to the
proposed combination. This might lead to exclusive dealing and create barriers to entry for competitors of PVR.
Consequently, PVR undertook not to sign or execute the cooperation agreement.
Operation of companies as separate businesses

In China National Agrochemical Corporation,[59] the CCI had concerns relating to the bundling of products, vertical
integration, interoperability, restrictions in technology agreements and increasing the control of the parties in the
supply chain. The CCI considered that these could enhance the market power of the combined entity to impede the
local system and the innovation and ability of farmers and public sector research institutions to offer alternative
integrated solutions. These concerns were addressed by an undertaking under which the parties’ Indian companies
would operate as separate, independent and competitive businesses for seven years.
Behavioural remedies in Bayer/Monsanto

In Bayer/Monsanto,[60] the CCI accepted a broad package of behavioural remedies to address a variety of concerns
about horizontal overlaps, vertical foreclosure, innovation and portfolio effects.
In three markets, the CCI had horizontal concerns. In relation to the market for the licensing of herbicide-tolerant
traits technology, the CCI saw Bayer as a significant global competitor to Monsanto; as Monsanto would no longer
be threatened by Bayer’s innovation activities, it would have less incentive to innovate to protect its business. In
relation to the market for the licensing of Bt traits for cotton seeds in India, the CCI noted the strong market
position of Monsanto. Although Bayer was not actually present in the Indian market, the CCI considered that it was
a competitor with the ability to effectively constrain Monsanto and also noted that entry barriers were significant.
In relation to the market for the licensing of parental lines or hybrids for corn seeds, the CCI considered that the
combination would result in the consolidation of two major players in terms of the strength of seed traits and trait
stacks. To address these concerns, Bayer undertook, for seven years after closing, to follow a policy of broad-based,
non-exclusive licensing of traits currently commercialised in India, or to be introduced there in the future, on a fair,
reasonable and non-discriminatory (FRAND) basis with willing and eligible licensees.
The CCI also had concerns about portfolio effects since the parties were present in closely related markets.
Concerns about bundling resulted in an undertaking from Bayer that the combined entity would not offer its
clients, farmers, distribution channels and commercial partners bundled products that might potentially have the
effect of excluding competitors. Bayer also undertook, for a seven-year period, to follow a policy of non-exclusive
licensing on a FRAND basis of non-selective herbicides or their active ingredients in the case of launch of a trait in
exclusivity in the sales channel.
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effectively excluding its competitors. To address this concern, the combined entity would be required to provide
access for seven years through licences on FRAND terms to (1) existing Indian agroclimatic data, (2) the combined
entity’s digital farming platforms in India for supplying or selling agricultural inputs to agricultural producers, and
(3) subscriptions to the combined entity’s digital farming products and platforms commercialised in India. In
addition, the combined entity would grant access to Indian agroclimatic data free of charge to government
institutions to create a public good in India.
Finally, the CCI had concerns that the consolidation of the parties’ R&D activities in seeds and traits would reduce
the rate of innovation at which new products were launched globally and in India, and adversely affect the Indian
seed market. It appears that these concerns were addressed by the general commitments on licensing traits on a
FRAND basis, which would enable suppliers in India to innovate and launch new products for the benefit of farmers
and produce effective competitive constraints on the combined entity.
Behavioural remedies in Schneider Electric

In Schneider Electric,[61] the CCI cleared the proposed acquisition of the electrical and automation business of
Larsen & Toubro on the basis of a package of behavioural remedies proposed by the acquirers. The CCI found that
the proposed combination would be likely to result in an AAEC since:
the transaction involved the consolidation of two prominent competitors, who were the first and second leading
players in the market, and enjoyed inherent advantages over the other competitors, with the widest range of
offerings in the market;
the parties had high combined market shares in six markets in which they overlapped;
as the target was the most entrenched brand in India with maximum installations, there would be replacement
costs where its offering was discontinued;
the reach and portfolio of the combined entity would lock a larger part of the distribution network and other
downstream players – this vertical integration would make entry difficult;
new and existing competitors would not provide a competitive constraint; and
with the massive size of the combined entity, the cost to rivals of competing and increasing their presence in the
market would be much higher than before.
The CCI initially proposed to address this by means of divestments of the target’s business in six products.
However, the acquirers argued that the divestments would be unviable and disproportionate. Citing practice in the
European Union,[62] the acquirers successfully argued for a package of solely behavioural remedies consisting of:
white-labelling arrangements with third parties of five products of the target for five years;
the provision of a non-exclusive technology licence for a further five years to one of the third parties that had
availed of the white labelling;
the amendment by Schneider Electric of its distributorship agreement and commercial policy to remove barriers
encouraging de facto exclusivity;
the adoption by Schneider Electric of a pricing mechanism under which the average selling price of the six high
market share products would not exceed the target’s average net selling price for the preceding year; and
commitments in relation to R&D, exports and non-rationalisation of the target’s products.
The CCI stated that the modifications proposed would give competitors the opportunity to strengthen their
product portfolio and increase the viability of their own brand in a sustainable way without incurring significant
capital investment costs. This would enable them to become as credible competitors as the target. Schneider
Electric is the first and only case in India involving a Phase II investigation that was cleared solely based on
behavioural remedies.
Access to infrastructure
In GSPC Distribution Networks,[63] the CCI found there was no AAEC in markets for the transmission and
distribution of natural gas in the state of Gujarat, largely because third-party access was regulated. The acquirer
nonetheless told undertakings that it would review contracts to ensure compliance with the Act and sectoral
legislation, and to submit a compliance report to the CCI.
conflicts of interest on the part of the PSUs. The parties agreed to amend the shareholders agreement to enable
non-PSUs to share in the ownership of the fuel farm in future, to set up a joint coordination committee to ensure
that fuel suppliers were treated fairly and equitably, and to increase capacity up front. The CCI also considered that
a number of safeguards in relation to the operation of the fuel farm – publication of key information on the website,
a clause in the standard supply agreement on compliance with competition law, giving reasons for denying suppliers
the right to supply, adequate monitoring mechanisms, and ensuring the facility operated ‘in complete consonance
with principles of competition law and fairness’ – would enhance transparency and promote arm’s-length distance
in operating the fuel farm.
In TRIL Urban Transport,[65] the acquirer, part of the Tata Sons Group (Tata), proposed to acquire a minority
shareholding in airport operator GMR Airports. Since Tata had majority holdings in two airlines, there were
concerns of a conflict of interest, with the vertically integrated entity having the incentive to foreclose competing
airlines. The CCI accepted a voluntary modification designed to alleviate any potential conflict of interest under
which:
the acquirer would not appoint directors or key managerial persons in the airport operator subsidiaries of the
target;
any acquirer director on the board of the target would recuse himself or herself if there was any discussion
about, or voting on, slot allocation;
the target would ensure that commercially sensitive information on slot allocation was not given to an acquirer
director if it would result in the acquirer obtaining an undue commercial advantage;
directors on the board of the target could not also be directors of airline companies;
adequate monitoring mechanisms would be put into place; and
the airport operators would follow the principles of competition law, including competition neutrality, level
playing field and fairness.
Spillover effects
In Nippon Yusen Kabushiki,[66] which concerned the creation of a JV to continue container line shipping and
terminal services, the CCI expressed concerns about the possible spillover effects in the parties’ retained
businesses. These were addressed by a voluntary behavioural commitment to introduce a ‘rule of information
control’ prohibiting exchanges of information on the non-integrated businesses and for disciplinary action in cases
of breach.
In Northern TK Venture,[67] in which the proposed combination involved competing healthcare providers, a
subsidiary of the acquirer had a JV with a third competitor. To alleviate concerns that the JV could be a platform for
coordinated behaviour between the combined entity and the other competitor or JV itself, the acquirer made
voluntary commitments ensuring that the combined entity and the JV would operate as separate, independent and
competitive businesses. As well as a ‘rule of information control’ preventing information exchange, with sanctions
for breach, there would be no common directors on the boards of the combined entity and the JV, and the directors
would provide undertakings on the disclosure of commercially sensitive information.
Impact on consumers
In Dish TV/Videocon,[68] which involved direct-to-home broadcasting services, concerns that customers would
have to bear the costs of any technical alignment carried out by the new entity were allayed by a commitment that
the combined entity would bear the costs of the alignment.
A similar approach was taken in Jio,[69] in which Jio had acquired stakes in two companies providing cable television
and other services. The parties undertook there would be no technical realignment that would result in changes in
equipment in customer premises. In the event of such a technical alignment, the costs would be borne by the
parties. The parties also undertook that, after the combination, the customers would be free to choose any type of
service or bundle (broadband, cable television and telephone) offered by the companies.
Non-compete provisions
In 16 cases, the CCI accepted commitments in relation to non-compete provisions. In Orchid Chemicals,[70] the CCI
stated that a non-compete obligation had to be reasonable as regards duration and the business activities,
geographical areas and persons subject to restraint. In a number of earlier cases,[71] the CCI accepted commitments
reducing the term of the non-compete obligation from eight, six or five years, to four years. In later cases, it
accepted reductions from five (and in one case seven) years to three years.[72] In the chemicals and pharmaceutical
sectors, the CCI accepted commitments to limit the non-compete to products that were actually manufactured or
under development.[73] In Torrent Pharmaceuticals,[74] the parties committed to carving out products that were not
In a number of cases involving private equity investment, the promoters of the target accepted non-compete
obligations until either the acquirer or the promoter ceased to hold 10 per cent of the shares. The CCI accepted
commitments to increase the level of shareholding as far as the acquirer was concerned to 10 per cent.[76] In one
case, the promoters were required not to take up any active executive role with another person even if not engaged
in competing business with the target: the parties offered to limit this to cases in which the other person competed
with the target.[77] In Black River Food 2,[78] the parties agreed to delete a clause requiring the promoters to take all
such actions within their control to ensure that the target company and its subsidiaries were the only entities that
engaged in the production of a broad range of food and fast-moving consumer products.
In November 2020, the Combination Regulations were amended[79] to omit the requirement to furnish information
in relation to non-compete provisions and their object, duration, justification, etc., in the notification form to the
CCI. Although this addresses the commercial realities of dealmaking while also reducing the information burden,
the parties will now need to self-evaluate their non-compete arrangements to ensure that these arrangements
comply with competition law.
Behavioural remedies in Hyundai and Kia

In Hyundai and Kia,[80] the two OEMs each proposed to acquire small shareholdings in OLA, a ride-sharing
company facilitating transport services through an online platform, and in an affiliate of OLA, a start-up focusing on
charging infrastructure services for electric vehicles. Along with these investments, strategic cooperation between
the two OEMs and the target companies was envisaged. OLA operates in the radio taxi space in India and the two
OEMs sought to address concerns that OLA drivers not driving Hyundai or Kia vehicles might be placed at a
disadvantage. The two OEMs thus offered voluntary modifications that the proposed strategic cooperation
between them and OLA would be on a non-exclusive basis. In addition, the algorithm (programme) of OLA’s
marketplace would not (1) give preference to drivers based solely on the brand of the passenger vehicles
manufactured by the two OEMS, or (2) discriminate against any driver based solely on the brand of vehicle
manufactured by any other OEM. Hyundai and Kia clarified that, apart from this stipulation on OLA’s algorithm,
OLA’s existing business model with Ola Fleet Technologies (engaged in the business of operational car leasing to
OLA drivers, including of Hyundai vehicles) would not be affected.
Compliance with the above modification would fall on OLA. The CCI therefore directed the two OEMs to procure
an affidavit from OLA that it would ensure compliance with the modification.
Implementing the remedy: the divestiture cases

In many of the divestiture cases, the CCI has set out in some detail the elements of the required divestiture.[81]
Although space does not permit a detailed examination of these elements, they may be briefly set out as follows.
Identifying the divestment business: the necessary components of the business, including, in some cases, key
personnel, are set out in the order.
First divestiture period: the divestiture is, in principle, to take place with requisite CCI approvals in the first
divestiture period. Typically, this period is six months from the date of clearance decision, though it was 18
months in Agrium/PotashCorp.[82] The period is often treated as confidential in the order. The CCI may also
extend this period based on the merits of each case. In ZF Friedrichshafen,[83] the CCI extended the first
divestiture period (in which the High Court had directed the CCI to reconsider its initial decision not to grant an
extension request).
Preservation of economic viability, marketability and competitiveness: measures are to be taken to ensure that
the business to be divested is run as a viable business, that assets are not degraded, etc.
Hold separate obligations: if the business to be divested is part of a broader business, the former is to be kept
separate with the appointment of a hold separate manager. In the case of divestment of shares, the divesting
shareholders are not to exercise voting rights or be involved in the business from the date of the CCI’s decision.
Ring-fencing: confidential information is not to be shared between the parties and the divested business.
Non-solicitation: there is a limitation on employment by the parties of key personnel transferred to divested
business.
Due diligence: the parties are to provide information to potential purchasers to allow them to undertake
reasonable due diligence.
Reporting: the parties are to keep the monitoring agency informed of the process and potential purchasers.
No acquisition of influence: the parties are not to acquire direct or indirect influence over divestment business
for a specified period after closing.
and of the terms of the sale and purchase agreement. In all cases other than Sun/Pharma,[84] the CCI has
GCR merger remedies
permitted guide:
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ShardulofAmarchand Mangaldas & Co
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Monitoring agency: the CCI generally appoints an independent agency as a monitoring agency to supervise the
carrying out of the modification.[85]
Second divestiture period: if the parties fail to divest in the first divestiture period, the CCI may direct the parties
to divest alternative divestment products in a second divestiture period. This will be overseen by a divestment
agency, which will have the sole authority to sell at no minimum price.
Duties and obligations of parties: the parties are generally required to cooperate with the monitoring agency
and, if applicable, the divestment agency. The CCI may also request information from the parties reasonably
necessary for the effective implementation of the order.
Removal of difficulty or review clause: The CCI may, of its own motion, or based on a reasoned application filed
by the parties, pass an order or directions as it feels fit to address any unforeseen circumstances or difficulties in
implementing the order.[86]
Securing compliance
The CCI has not, to date, identified any cases of non-compliance with modifications.
The Act and the Combination Regulations contain a number of provisions that address compliance with
modifications in Phase I and Phase II.
When the CCI approves a combination with modification, the CCI’s approval order shall specify the terms,
conditions and time frame for all the actions required for giving effect to the combination.[87] If the parties fail to
carry out the modification accepted by them within the stipulated time limit, the CCI shall issue appropriate
directions.[88]
The Act provides for penalties for non-compliance with orders or directions of the CCI.[89] A person who fails
without reasonable cause to comply with orders or directions, including those issued under Section 31, may be
fined up to 100,000 rupees per day of non-compliance, up to a maximum of 100 million rupees. If there is no
compliance with the order or directions, or a failure to pay a fine, the person concerned could be punished with up
to three years’ imprisonment or a fine of up to a 250 million rupees, or both, by the Chief Metropolitan Magistrate,
New Delhi. Compensation may also be sought by persons for loss of damage shown to have been suffered as a
result of an enterprise violating directions issued by the CCI or contravening, without any reasonable ground, any
decision or order of the CCI, or any condition or restriction subject to which any approval, sanction, direction or
exemption in relation to any matter has been accorded, given, made or granted under the Act or delaying in
carrying out the orders or directions of the CCI.[90]
The CCI has also addressed compliance in specific orders. These, together with legal provisions specific to Phase II
orders, are outlined below.
Phase I
In a number of the earlier cases involving non-compete clauses, the parties were directed to give effect to the
modification. In other cases, the CCI has adopted a varied response.
In Dish TV/Videocon,[91] and later in Jio,[92] the parties were directed to file a compliance report annually for five
years. In Mumbai International Airport,[93] the parties were directed to give effect to the commitments. The CCI
stated that the order would stand revoked in the event of failure to comply. The same statement was made in
Nippon Yusen Kabushiki and Northern TK Venture.[94] In 2019, in TRIL Urban Transport,[95] the CCI directed the
parties to submit a compliance report, with an affidavit, within 60 days of receiving the order. In addition, the
modification was to be prominently displayed on the websites of the acquirer and the target, with a link to the CCI
order.
In Abbot Laboratories,[96] approval was expressly given subject to the parties carrying out the modification. The
parties were directed to inform the CCI as soon as the modification was carried out and the combination
consummated. If there was any change in the modification, or it was not carried out, the parties were to inform the
CCI so that it might reconsider its approval order.
The clearest statement was made in China National Agrochemical Corporation,[97] in which the CCI approved the
proposed combination subject to compliance with the divestiture commitments and undertaking given in the
remedy proposal, and gave a detailed direction. In the event of failure to comply, the proposed combination would
corporate structure of the parties that might adversely affect their compliance.
GCR merger remedies [99]

guide: Fourth edition India chapter - Shardul Amarchand Mangaldas & Co 04/12/23, 7:54 PM
In Hyundai and Kia, the CCI stated that the terms of the voluntary modification ‘shall be read purposively for the
purpose its compliance [sic] as the Proposed Combination is approved subject to the modifications’. The CCI also
reserved the right to pass such directions as might be necessary to address any unforeseen circumstances.
Phase II
Section 31(5) of the Act addresses the circumstance in which the parties accept the modification proposed by the
CCI without themselves submitting amendments; if the parties fail to carry out the modification within the period
specified by the CCI, the combination will be deemed to have an AAEC and the CCI will deal with this in accordance
with the Act. In Dow/DuPont,[100] the CCI expressly approved the proposed combination subject to the parties
carrying out the modification accepted unconditionally by them.
The Combination Regulations provide that, when the parties have accepted the modification proposed by the CCI
under Section 31(3) of the Act, the CCI agrees with the parties’ amendment under Section 31(7), or the parties
accept the CCI’s modification under Section 31(8), the parties are to carry out the modification as per the terms and
conditions and within the period specified by the CCI and submit an affidavit to that effect.[101]
In both Sun/Ranbaxy and Holcim/Lafarge,[102] the CCI approved the combination under Section 31(7) subject to
the parties carrying out the modification to the combination. In PVR,[103] approval under Section 31(7) was made
subject to the parties complying with the commitments given in relation to Gurgaon and Noida and carrying out the
modifications accepted in relation to South Delhi. In Agrium/PotashCorp,[104] the CCI approved the proposed
combination under Section 31(7) subject to the parties carrying out the modification as approved by the NCLAT.
In Bayer/Monsanto,[105] Linde/Praxair[106] and later in ZF Friedrichshafen,[107] the CCI stated that, if the parties
failed to comply with the modifications, the proposed combination would be deemed to have caused an AAEC in
India and the concerned parties would render themselves liable to being proceeded against under the relevant
provisions of the Act.
In Schneider Electric,[108] the CCI stated that the remedial modifications were ‘to be interpreted purposively to give
effect to the objectives of offering them’. Schneider Electric and its affiliates were not to make any commercial offer
or engage in a dealing with respect to the low voltage switchgear products that had the effect of diluting the effect
or objectives of the modifications. Apart from attracting proceedings for breach of the modifications, the person
concerned could also be proceeded against under relevant provisions of the Act, including Section 4 (abuse of
dominant position).
The CCI also required the filing by the acquirers of an annual report on compliance with the modifications, with a
narrative of how the remedies were working in the Indian market and a description of the state of play of
competition in the market.
Finally, mention should be made of the vital role of independent agencies in overseeing modifications. As discussed
above, provision is routinely made in divestiture cases for the appointment of monitoring agencies and, where this
becomes necessary, of divestment agencies. These agencies are usually appointed by the CCI; exceptionally, in its
February 2020 order in ZF Friedrichshafen,[109] the CCI did not appoint a monitoring trustee to oversee the
remedies, leaving the parties responsible for this exercise. Monitoring agencies have also been appointed to
oversee behavioural commitments. For example, in Schneider Electric,[110] the CCI stated that the behavioural
remedies offered by the acquirers ‘contemplate monitoring of various aspects therein’ and the clearance order
provided for the appointment of an independent agency as monitoring agency to supervise the modifications and
ensure compliance by the acquirers.[111]
Conclusion
Some general points may be made by way of a conclusion.
The CCI has shown that, rather than block a transaction with an AAEC, it will be prepared to go to significant
lengths to consider remedies to secure clearance. This includes the CCI’s commitment to understand the
businesses of the parties to a combination to appropriately tailor any remedies. For instance, in Metso/Outotec,
[112] the CCI case team conducted physical site visits at two customers’ plant sites to understand the business
activities and business model of the parties.
The CCI is prepared to avail of a broad range of structural and non-structural remedies, though, when there are
significant horizontal overlaps, it has shown a clear preference for structural over behavioural remedies. The CCI
has demonstrated that it will not be inhibited from accepting or directing quasi-structural remedies, as in
Metso/Outotec,[113] in which its AAEC concerns are addressed.
has identified.
As an active member of the International Competition Network (ICN), the CCI takes from and contributes to the
best practices developed by that body. Although not specifically referred to, elements of the ICN’s 2016 Merger
Remedies Guide are clearly reflected in the clearance orders.
In dealing with the Indian element of global mergers, the CCI is actively engaging with other antitrust authorities to
finalise the remedies acceptable in India. The CCI has developed good relationships with its counterparts in major
jurisdictions such as the United States and the European Union, and will draw inspiration from practice elsewhere.
However, the CCI has shown that it will focus on competition effects in India and will not necessarily follow the
approach to remedies taken elsewhere. In Metso/Outotec,[114] India was the only jurisdiction where remedies were
required because of the substantial concerns raised by customers in the market for IOP equipment. This makes it
clear that the CCI will not shy away from asking the parties for remedies or commitments in India alone, if the CCI is
of the opinion that there may be India-specific competition law concerns. The fact that the combination has been
approved unconditionally in all other jurisdictions may not have a bearing on the CCI’s assessment. It is also clear
that where the Indian market is affected, the CCI will seek remedies in relation to assets outside India.
Intelligent planning by parties can help in getting remedies that they will be (at least relatively) happy with. Serious
consideration needs to be given to offering proportionate modifications in Phase I, though parties may prefer to
wait until the beginning of Phase II before revealing their hand. Any later, and the CCI may have a stronger hand. In
any case, where a deal may raise AAEC concerns, the parties should think about remedies far in advance and have a
viable ‘plan B’ ready to discuss with the CCI.
Finally, mention should be made of the July 2019 report of the Competition Law Review Committee,[115] which was
tasked with reviewing and recommending a robust competition regime and suggest changes in the substantive and
procedural aspects of competition law. Three main recommendations in relation to remedies were also reflected in
the draft Competition (Amendment) Bill, 2020[116] introduced by the Ministry of Corporate Affairs in early 2020.
First, equal opportunities should be given to the CCI and the notifying parties to propose remedies at various
stages of the review process. Second, market testing of proposed remedies should be robust and undertaken where
required. Third, annual reports of companies subject to remedies could make disclosure on compliance with
remedies.
Whatever changes may result from this exercise, it is certain that the law and practice on merger remedies in India
will continue to evolve.
Footnote
[1] www.cci.gov.in
[2] Cases C-2014/05/170 Sun/Ranbaxy (5 December 2014) (and see continuation order of 17 March 2015); C-2014/07/190 Holcim/Lafarge (30
March 2015) (and see supplementary order of 2 February 2016); C-2014/10/215 ZF Friedrichshafen (24 February 2015); C-2016/05/400
Dow/DuPont (8 June 2017); C-2016/08/418 Abbott Laboratories (13 December 2016); C-2016/08/424 China National Agrochemical
Corporation (16 May 2017); C-2016/10/443 Agrium/PotashCorp (27 October 2017); C-2017/06/519 FMC (18 September 2017); C-
2017/08/523 Bayer/Monsanto (14 June 2018); C-2018/01/545 Linde/Praxair (6 September 2018); C-2019/11/703 ZF Friedrichshafen (14
February 2020) (and further order of 4 January 2021); C-2020/04/741 Canary/Intas (30 April 2020); and C-2020/03/735 Metso/Outotec (18
June 2020).
[3] id.
[4] Case C-2018/07/586 Schneider Electric (18 April 2019).
[5] Case C-2015/07/288 PVR (4 May 2016).
[6] Cases C-2012/11/88 GSPC Distribution Networks (8 January 2013), C-2014/04/164 Mumbai International Airport (29 September 2014),
Bayer/Monsanto (see footnote 3, above) and C-2019/07/676 TRIL Urban Transport (1 October 2019).
[7] Case C-2016/11/459 Nippon Yusen Kabushiki (29 June 2017) and C-2018/09/601 Northern TK Venture (29 October 2018).
[8] Case C-2016/12/463 Dish TV/Videocon (4 May 2017) and C-2018/10/609, C-2018/10/610 Jio (21 January 2019).
[9] Cases C-2012/09/79 Orchid Chemicals (21 December 2012), C-2013/04/116 Mylan (20 June 2013), C-2014/01/148 Torrent
Pharmaceuticals (26 March 2014), C-2015/05/270 Advent International (12 June 2015), C-2015/06/286 TVS Logistics (29 July 2015), C-
2015/07/288 PVR (see footnote 6, above), C-2015/08/304 KKR Credit Advisers (8 December 2015), C-2015/12/356 Mandala Rose (28 March
2016), C-2016/01/368 Broad Street Investments (30 March 2016), C-2016/01/371 Black River Food 2 (13 May 2016), C-2016/02/373 Clariant
Chemicals (11 May 2016), C-2016/03/387 LT Foods (11 May 2016), C-2016/06/407 HDFC (1 August 2016), C-2016/10/442 Aspen Global (13
January 2017), C-2016/10/444 HP (27 April 2017) and C-2016/11/453 CDPQ Private Equity (29 December 2016).
[10] Case C-2019/09/682 Hyundai Motor Company and Kia Motors Corporation (30 October 2019).
[11] See, for example, Holcim/Lafarge, Abbott Laboratories, Dow/Dupont, Agrium/PotashCorp, Bayer/Monsanto and Linde/Praxair (see
footnote 3, above).
[12] See footnote 3, above.
[16] Ministry of Corporate Affairs, notification dated 29 June 2017.
[17] See Procedure in Regard to the Transaction of Business Relating to Combinations Regulations 2011, as last amended in November 2020
[Combination Regulations]., Regulation 19(2).
[19] See footnote 8.
[21] See footnote 6.
[25] Competition Act 2002 [the Act], Section 31(3) and Combination Regulations, Regulation 25(1).
[26] The Act, Section 31(4).
[27] id., Section 31(5).
[29] id
[30] The Act, Section 31(9) and Combination Regulations, Regulation 25(4).
[32] id., Section 31(7) and Combination Regulations, Regulation 25(3).
[34] id.
[39] id., Section 31(9) and Combination Regulations, Regulation 25(4).
[41] Combination Regulations, Regulation 10(3).
[42] The Act, Section 29, paras. (2) and (3).
[45] id.
[46] id.
[47] id.
[48] id.
[49] id.
[50] id.
[51] id.
[52] id.
[53] id.
[54] id.
[55] id.
[56] id.
[58] For the position in relation to non-compete, see the subsection on non-compete provisions, below.
[60] id.
[62] M.8678 ABB/General Electric Industrial Solutions (1 June 2018) and M.3593 Apollo Group/Bakelite AG (11 April 2005).
[64] id.
[65] id.
[67] id.
[69] id.
[71] Orchid Chemicals, Mylan and Torrent Pharmaceuticals (see footnote 10, above).
[72] Advent International, TVS Logistics, PVR, Clariant Chemicals, Aspen Global and HP (see footnote 10, above).
[73] Orchid Chemicals and Mylan (see footnote 10, above).
[79] Available at https://www.egazette.nic.in/WriteReadData/2020/223361.pdf

[81] Sun/Ranbaxy, Holcim/Lafarge, Dow/DuPont, China National Agrochemical Corporation, Agrium/PotashCorp, FMC, Bayer/Monsanto and
ZF Friedrichshafen (2020) (see footnote 3, above).
[83] See ZF Friedrichshafen (2020) (footnote 3, above).
[85] See Regulation 27 of the Combination Regulations for provisions on the appointment of independent agencies to oversee modification. This
originally covered only modifications proposed by the Competition Commission of India and accepted by the parties. Reflecting de facto
practice, it was amended in October 2018 to cover all modifications
[88] id., Regulation 28(4).
[89] The Act, Section 43.
[90] id., Section 42A.
[92] id.
[97] id.
[98] id.
[105] id.
[106] id.
[111] Exceptionally, the appointment of the monitoring agency in Schneider Electric was made public in a notice dated 11 July 2019.
[113] id.
[114] id.
[115] This was published on the website of the Ministry of the Corporate Affairs
http://mca.gov.in/Ministry/pdf/ReportCLRC_14082019.pdf
[116] Available at http://feedapp.mca.gov.in/pdf/Draft-Competition-Amendment-Bill-2020.pdf
This article was originally published in Global Competition Review on 8 November 2021 Co-written by: John
Handoll, National Practice Head; Shweta Shroff Chopra, Partner; Aparna Mehra, Partner. Click here for original
article
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the author/authors and does not necessarily reflect the views of the firm.
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Articles / Alerts Reports Research Papers

GCR merger remedies guide: Fourth edition India Private Equity

The ‘grey zone’

A number of possible outcomes are provided for in the Act.

Addressing competitive harm: the CCI orders

clutch systems used in light and heavy commercial vehicles.

Transfer of exclusive, irrevocable licence

Addressing issues of common ownership

In South Delhi, the CCI found that:

the combination would result in the removal of a vigorous head-to-head competitor;

there was no adequate competitive constraint by competitors;

there was limited scope for new entry;

efficiencies were not combination-specific;

there was low countervailing buyer power; and

there was very limited incentive by the acquirer to innovate.

Operation of companies as separate businesses

Behavioural remedies in Bayer/Monsanto

Behavioural remedies in Schneider Electric

commitments in relation to R&D, exports and non-rationalisation of the target’s products.

adequate monitoring mechanisms would be put into place; and

Behavioural remedies in Hyundai and Kia

Implementing the remedy: the divestiture cases

GCR merger remedies [99]

[4] Case C-2018/07/586 Schneider Electric (18 April 2019).

[5] Case C-2015/07/288 PVR (4 May 2016).

[12] See footnote 3, above.

[18] See footnote 7, above.

[19] See footnote 8.

[20] See footnote 3, above.

[21] See footnote 6.

[22] See footnote 3, above.

[23] See footnote 3, above.

[24] See footnote 3, above.

[26] The Act, Section 31(4).

[27] id., Section 31(5).

[28] See footnote 3, above.

[31] The Act, Section 31(6).

[32] id., Section 31(7) and Combination Regulations, Regulation 25(3).

[33] See footnote 3, above.

[35] See footnote 6, above.

[36] See footnote 3, above.

[37] See footnote 5, above.

[38] The Act, Section 31(8).

[39] id., Section 31(9) and Combination Regulations, Regulation 25(4).

[40] See footnote 3, above.

[41] Combination Regulations, Regulation 10(3).

[42] The Act, Section 29, paras. (2) and (3).

[43] See footnote 6, above.

[44] See footnote 3, above.

[57] See footnote 6, above.

[59] See footnote 3, above.

[61] See footnote 5, above.

[63] See footnote 7, above.

[66] See footnote 8, above.

[68] See footnote 9, above.

[70] See footnote 10, above.

[73] Orchid Chemicals and Mylan (see footnote 10, above).

[74] See footnote 10, above.

[79] Available at https://www.egazette.nic.in/WriteReadData/2020/223361.pdf

ZF Friedrichshafen (2020) (see footnote 3, above).

[82] See footnote 3, above.