Keeping up with Competition - October 2024
A monthly newsletter by Axiom5
Welcome to the thirteenth edition of our monthly newsletter, Keeping up with Competition. In this issue, we recap the key events that shaped the Indian competition law and policy landscape in September 2024.
Detailed summaries of orders passed by the Competition Commission of India (CCI) can be accessed here.
The CCI’s merger control regime overhauled
India has introduced significant revisions to its merger control rules, streamlining the process and expanding the scope of transactions requiring notification. This includes notable changes such as the introduction of a "deal value threshold" (DVT) concerning transactions exceeding INR 20 billion (~$238 million) that meet local nexus criteria. Such transactions will now require the CCI’s approval, regardless of the parties' asset or turnover size. The review timeline has also been reduced from 210 to 150 days, with a new "deemed approval" provision if the CCI fails to decide within 30 days. The process for offering remedies has been streamlined, allowing both parties and the CCI to propose modifications at various stages. Further, the definition of ‘control’ has been modified to substitute “controlling the affairs or management” with “ability to exercise material influence, in any manner whatsoever, over the management or affairs or strategic commercial decisions”. Moreover, on-market share acquisition (i.e. acquisition at stock exchanges) can now be notified 30 days post- acquisition without facing any gun-jumping penalties.
To simplify the filing process, a host of rules have been adopted including the Competition (Criteria of Combination) Rules, which provides the criteria for availing the benefit of the CCI’s green channel mechanism for combination approval; the Competition (Minimum Value of Assets or Turnover) Rules, which provides the thresholds for de minimis exemption from the requirement to notify; and the Competition (Criteria for Exemption of Combinations) Rules, which streamlines the list of exempt transactions, providing clear guidance and resolving previous ambiguities in interpretation.
These sweeping changes aim to modernise India's merger control framework, balancing the need for effective competition oversight and minimising business compliance burdens. Axiom5’s detailed primer on India’s revised merger control rules is available here.
Updated general regulations introduced
The CCI has notified the CCI (General) Regulations, 2024 (General Regulations) marking key changes to the 2009 regulations. The new General Regulations:
Empower the CCI to appoint independent monitoring agencies to oversee the implementation of merger review and enforcement orders.
Define "interlocutory" and "miscellaneous" applications, with prescribed filing fees.
Allow the CCI to strike off parties from proceedings if no relief is claimed against them.
Increase filing fees for information filings under Section 19 of the Competition Act, 2002 (Act).
Require the Director General (DG) to provide parties an opportunity to cross-examine witnesses relied upon in investigation reports.
Require all submissions to be countersigned by an authorised representative and include an affidavit. This increases credibility but also the burden on parties appearing before the Commission.
Karnataka High Court stays the CCI's probe of Flipkart and Amazon
The Karnataka High Court (KHC) has passed an interim stay on the CCI’s investigation of Flipkart and Amazon due to a procedural lapse. The petitioners argued that the DG erred in classifying them as 'opposite parties' in an ongoing investigation.
The petitioners were initially involved as 'third parties' providing information under Section 41 of the Act. However, the DG, in its report to the CCI, reclassified them as 'opposite parties' without obtaining the necessary permission from the CCI, as mandated under Regulation 24 of the CCI (General) Regulations, 2009.
The petitioners argued that this was a violation of established procedures and regulations. The DG is required to seek prior approval from the CCI before altering the status of a party from a third party to an opposite party. The petitioners argued that the CCI must consider the DG's report void to the extent it contravened the regulatory framework.
The KHC granted an interim stay on the ongoing investigation, pending further hearing.
Merger Control - a snapshot
The CCI approved nine combinations and published five detailed orders in September 2024 (the summaries of these orders are available here). The CCI received seven new notices, of which four notices were through the Green Channel route.
Behavioural cases
The CCI issued two closure orders. In Sabine S., the CCI determined that the allegations against the opposite party, concerning the alleged spread of misinformation or misstatements about the cost of infertility treatments, did not fall under the purview of the Act. In Vande Mataram as well, the CCI observed that the allegations of unlawful seizure of shares and monopolisation of the cable TV network business in Chhattisgarh did not fall under the Act. The CCI also observed that the Act did not provide for joint/collective dominance.