The Competition Commission of India (CCI) through its notification dated April 4, 2013, amended for the second time, The Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Regulations, 2011(Combination Regulations). The regulations, while making several changes to the existing Regulations (which had previously been amended in 2012)significantly altered an area of great confusion for competition lawyers in India. Item 8A of Schedule I of the regulations, which deals with exemptions granted to certain intra group mergers and amalgamations from notification under § 6 of the Competition Act, read with Rule 4 of the Combination Regulations, 2011 was removed and a new Item 9 was put in its place which effectively changed the structure of exempted intra-group mergers.
A combination is essentially an acquisition, merger or amalgamation of one or more enterprises by one or more persons over certain asset value and turnover thresholds. The CCI mandates that combinations be reported to it so that it may be sure that these combinations do not lead to concentration of market share in the hands of a few persons of enterprises within a group which may have an adverse impact on the competition due to potential abuse of dominance. Particularly of interest is the exemption granted to intra-group mergers. The original regulations, when published in 2011, had only Item 8 to deal with exemption to intra-group transactions. The rationale behind exclusion of these intra-group transactions was that as a group effectively, their market share and market power and influence are discernible to a third party. The internal structuring of the group would have minimal impact on its overall market position. Such rationale may be seen in European and American competition law dealing with regulation of combinations. It was to harmonize and upgrade Indian competition law that these regulations were enacted in the first place.
However, the 2011 Regulations only dealt with intra-group acquisitions of shares, voting rights or assets within the same group being exempt under Item 8 of Schedule I and made no mention of intra-group mergers or amalgamations. The CCI interpreted this to mean that mergers and amalgamations are not exempt from filing under Section 6 read with Rule 4 even if they are intra-group.
To remedy this exclusion, the 2012 amendment to the Combination Regulations introduced Item 8A to deal with the exclusion of intra-group mergers or amalgamations. Item 8A however, lead to much confusion among competition lawyers. While corporate India had asked for all intra-group mergers and amalgamations to be exempt, the CCI in Item 8A stated that only those intra group mergers that involve wholly-owned subsidiaries, either wholly owned by the holding company or enterprises within the group, will be exempt.
Thus, what Item 8A in Schedule I did was to say that in the case of a holding company, amalgamating with a subsidiary which is the wholly owned subsidiary of a group company, then that transaction would be exempt. For example, in a group if there exists a holding company, an intermediary company (which is a group company) and a wholly owned subsidiary of the intermediary company (which is also a group company) and the holding company owns 30% of the intermediary company which in turn obviously owns 100% of the wholly owned subsidiary. The CCI regulation seems to suggest that the merger between the holding company and the wholly own subsidiary would be exempt however the exemption does not apply to the holding company and the intermediary company. This oddly worded and logically skewed regulation was in fact greatly criticized by the competition law community for creating more confusion instead of clarifying the question of exemption of intra-group mergers and amalgamations.
Under the Amendment Regulations 2013, Items 8 and 8A of Schedule I have both subtly expanded and curtailed the ambit of exemption clause which would possibly have an escalating impact on a new chunk of enterprises. While under Item 8 of the original Regulations, exemption was availed where the acquisition of control or shares or voting rights or assets took place between enterprises within the same group, the 2013 regulations attached a proviso to it by excluding those cases where the acquired enterprise was jointly controlled by enterprises that were not part of the same group.When non-group enterprises had control over a group enterprise it would become difficult to tell what the market power and influence of the group was or for that matter what the real market power of the non-group enterprise or enterprises was. It is believed that to avoid any sort of confusion regarding the nature of market share of group and non-group enterprises this change in the Combination Regulations was brought about. Such a transaction has the potential to bring about an abuse of dominant position or effective cartelization and in the interest of fair competition, the CCI took upon itself the burden of scrutinizing all such transactions in which the acquired enterprise was jointly controlled by enterprises that were not part of the same group.
On the other hand, Item 8A of the 2012 Regulations which previously conferred the exemption only to those mergers or amalgamations which involved a holding company and its wholly owned subsidiary or subsidiaries belonging to the same group, was systematically omitted.This was further replaced by adding Item 9 in the 2013Regulations wherein the exemption clause covered all those mergers and acquisitions one enterprise holds more than 50% of the shares or voting rights of the other enterprise; or enterprise(s) within the same group hold more than 50% of the shares or voting rights of each enterprise, provided that, such transactions do not lead to the transfer of joint to sole control.
While this exemption is certainly a welcome step in what is arguably the right direction, it glosses over the fact that very often in India, family owned businesses are held through a variety of intermediate companies that represent the shareholding of each promoter (mostly done to avail of tax benefits) and collectively, these intermediate holding companies form part of the ‘promoter group’. The Competition Act, 2002 does not conceptually or legally provide for the notion of ‘persons acting in concert’ as under the SEBI Takeover Code since under § 2 of this Act an ‘enterprise’ may even be a single individual. Thus, a restructuring of companies within such a promoter group will still require the approval of the CCI due to the fact that such entities (despite being in a single ‘promoter group’) would not be considered under current competition law to fall within the same ‘group’, as defined under the Act. Such a practical scenario limits the effectiveness of the new regulations.
On the other hand, the exemption of mergers and amalgamations which convert joint control to sole control protects from violation of the primary purpose of competition law of promoting fair competition in the market.
In conclusion, while the amendments will undoubtedly reduce the burden caused by paperwork and red tape on business conglomerate for obtaining prior approval for a combination from the CCI by way of expanding, clarifying and simplifying the list of exempted combinations, it remains to be seen whether India Inc. is satisfied with the few fetters that still remain due to lacunae in the present law.
This post has been authored by Pratik Ranjan Das and Paridhi Poddar, students of 2nd and 1st year respectively, of West Bengal National University of Juridical Sciences, Kolkata
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