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COMPETITION LAW
& POLICY NEWSLETTER
INSIDE
SECTORS COVERED IN THIS ISSUE
CCI closes inves�ga�on against Tata Motors, on
allega�ons of an�-compe��ve restric�ons on its
dealers.
CCI notes correc�ve ac�on by Chemists Associa�ons
and Chandigarh Housing Board; refrains from
imposi�on of monetary penal�es.
NCLAT upholds CCI’s approval of AGI Greenpac’s
acquisi�on of Hindusthan Na�onal Glass and
Industries.
NCLAT upholds CCI’s dismissal of CUTS’ allega�ons
against the PVR-INOX merger.
Madras HC upholds CCI’s power to post-facto
examine a no�ce of a combina�on.
Delhi HC Division Bench rules that the Patents Act
prevails over the Competition Act on issues relating
to exercise of patent rights.
Key Enforcement Ma�ers
Quarter 3 of 2023
CCI imposes penal�es for gun jumping on en��es
including Bhar� Airtel, Axis Bank.
Merger Control
Other Key Developments
Mr. Anil Agarwal, Mr. Deepak Anurag, and Ms.
Sweta Kakkad appointed as members of the CCI.
CCI releases dra� regula�ons on Commitments and
Se�lements and Combina�ons for stakeholder
consulta�on.
Manufacturing
Automobiles
/Auto
components
Telecom
Media and
Entertainment
Banking &
Finance
Pharmaceu�cal
A QUICK SNAPSHOT
Mergers & Acquisi�ons
Enforcement Ma�ers
01
02
03
04
05
Number of cases
closed a�er
inves�ga�on: 3
Number of
inves�ga�ons
ini�ated: 0
Total amount of
penalty imposed
INR 0
Number of cases
where viola�ons
were found: 2
Number of cases
closed at prima
facie stage: 15
01
Total combina�ons filed:
11
Combina�ons approved:
10
Form II filings: 1 Combina�ons pending:
11
Green Channel filings:
3
Form I filings: 9
02
ENFORCEMENT
#1 CCI closes inves�ga�on against Tata Motors no�ng
lack of AAEC in the market.
On 23 August 2023, the Compe��on Commission of India (CCI) closed an inves�ga�on against Tata Motors Limited
(Tata Motors) on allega�ons of abuse of dominance and imposi�on of ver�cal restraints on its dealers. The
informa�on, filed by two authorized dealers of Tata Motors, alleged that Tata Motors: (i) abused its dominant posi�on
by dicta�ng vehicle off-take preferences to dealers; (ii) imposed restric�ve clauses in its dealership agreements by
requiring dealers to obtain a no-objec�on cer�ficate (NOC) before venturing into or acquiring new businesses; and
(iii) restricted dealers from selling vehicles outside their designated territory (collec�vely referred to as Impugned
Conduct).
The Director General (DG), a�er having found Tata Motors dominant in the ‘market for the manufacture and sale of
commercial vehicles in India’ concluded that Tata Motors imposed off-take requirements and territorial restric�ons
on its dealers. However, the DG did not find a contraven�on on the allega�on of the NOC requirement as there was
no evidence to show that Tata Motors had unreasonably withheld its consent to allow dealers from engaging in new
business as long as the dealer had the financial ability to sustain different businesses.
The CCI also agreed with the DG that the mere inclusion of an NOC requirement for the dealers, without evidence of
it being unjustly enforced, could not be held as a contraven�on. However, the CCI disagreed with the DG on the other
findings no�ng that (i) the imposi�on of off-take requirement was found to be contradicted by several dealer
tes�monials; and (ii) there was no substan�al evidence to show that the territorial restric�ons on the dealers led to
an AAEC in the market. As far as the allega�ons with respect to the territorial restric�ons imposed on the dealers
were concerned the CCI noted that such restric�ons placed by Tata Motors did not lead to an appreciable adverse
effect on compe��on (AAEC) in the market. The CCI took note of the jus�fica�ons put forth by Tata Motors which
included ensuring that dealers do not free-ride another dealer’s marke�ng and investments incen�vizing dealers to
invest in the dealership, enhancing intra-brand compe��on, etc.
Further, the CCI specifically noted that the informants were long-standing dealers of Tata Motors and had never
raised the same concerns before and that they approached the CCI only owing to the termina�on/ non-renewal of
their dealership agreements with Tata Motors.
The order of the CCI can be accessed here.
03
#2 No monetary penal�es in two recent cases where
the opposite par�es took correc�ve ac�on to address
the CCI’s concerns before the hearing.
On August 22, 2023 and 23, 2023, in two separate cases against the Chandigarh Housing Board (CHB) and Chemist
Associa�on, Raisingh Nagar and Sri Ganganagar Chemists Associa�on (collec�vely, Chemists Associa�ons)
respec�vely, the CCI passed orders direc�ng the CHB and Chemist Associa�ons not to engage in an�-compe��ve
conduct.
However, the CCI did not impose monetary penal�es since these opposite par�es took correc�ve ac�on to address
CCI’s concerns by withdrawing the resolu�on direc�ng boyco� of the informant in one of the instances. A snapshot
of the CCI’s findings is provided below:
Chandigarh Housing Board
Failure to men�on the �meline for comple�on of the relevant
project in the brochure/ other documents and only men�oning that
possession would be handed over upon comple�on of formali�es
and receipt of full payment; and
Levying interest for one month for a delay of one day in
payment of the installment amount and no provision for charging of
interest in such a manner was included under the brochure/ other
documents.
The CCI noted that CHB was dominant in the market for ‘the provision
of services for development and sale of residential flats in the Union
Territory of Chandigarh’ and found CHB to be abusing its dominant
posi�on in contraven�on of Sec�on 4 of the Compe��on Act, 2002
(Compe��on Act) for:
The CCI noted that CHB had taken steps, including, (i) registering new
schemes with the Real Estate Regulatory Authority, Chandigarh; (ii)
efforts to complete the construc�on of flats at the earliest; and (iii)
discon�nued charging interest for a full month for a few days’ delay in
payment of installments. Therefore, the CCI directed the CHB to cease
and desist from engaging in the an�-compe��ve prac�ces but did not
impose any monetary penalty.
The order of the CCI can be accessed here.
Finding Brief
Chemist Associa�on, Raisingh
Nagar and Sri Ganganagar
Chemists Associa�on
Issuing no�ces clearly indica�ng a decision to boyco� the Informant
and threatening such ac�on against the Informant in other districts
as well. The boyco� was to seek higher margins and control over the
stockists.
The CCI found that the Chemists Associa�ons, along with their
presidents, had engaged in an�-compe��ve non-coopera�on/ boyco�
of the products of Solar Life Sciences Medicare Private Limited
(Informant) for:
04
However, during the penalty assessment, the CCI noted that the
Chemists Associa�ons were opera�onal at the tehsil/ district level and
were also first-�me offenders. The presidents of two of the Chemists
Associa�ons also highlighted the welfare mo�ve on their part towards
the members of the Chemists Associa�ons and contended that their
respec�ve associa�ons received no fees/payments from the members
for membership or any other purpose. During the hearing, one such
president also stated that he was already the stockist of Informant’s
products. Par�cularly, resolu�on boyco�ng the Informant was also
withdrawn by the Chemists Associa�ons. The CCI directed the
Chemists Associa�ons and their presidents to cease and desist from
engaging in an�-compe��ve conduct and did not impose any
monetary penalty.
The order of the CCI can be accessed here.
05
On August 10, 2023, the Na�onal Company Law Appellate Tribunal (NCLAT) upheld the CCI’s order dated September
13, 2022 (CCI Order), dismissing a complaint filed by Consumer Unity and Trust Society (CUTS) alleging a
contraven�on of Sec�on 3 of the Compe��on Act by PVR Limited and (PVR) and INOX Leisure Limited (INOX).
CUTS alleged that PVR and INOX entered into an an�-compe��ve agreement by entering into a merger agreement
aimed at crea�ng the largest and the dominant cinema exhibi�on en�ty i.e., ‘PVR INOX Limited’ (PVR INOX). CUTS, in
its complaint to the CCI has alleged that the merger of PVR and INOX would likely cause AAEC in the market. The CCI
dismissed the allega�ons no�ng that for examina�on under Sec�on 3 of the Compe��on Act, an an�-compe��ve
conduct must exist, and the mere apprehension of any future an�-compe��ve conduct on account of dominance
resul�ng in AAEC is not sufficient. Notably, the CCI had observed that Sec�on 3 of the Compe��on Act deals with
scru�nizing the likelihood of AAEC in terms of any conduct which is an an�-compe��ve agreement and not a
likelihood of conduct itself. Such assessment, according to the CCI, is mainly ex-ante and was not per�nent to the
circumstances of this case.
CUTS filed an appeal before the NCLAT challenging the CCI Order. The NCLAT agreed with the CCI and dismissed the
appeal filed by CUTS on following grounds:
#3 NCLAT upholds CCI’s order dismissing CUTS’
allega�ons against the PVR- INOX merger.
The case pertained to a merger resul�ng in a combina�on and not an
an�-compe��ve agreement subject to scru�ny under Sec�on 3 of the
Compe��on Act;
Dominance per se is not bad and the provisions under Sec�on 4 of the
Compe��on Act would be a�racted in case of any an�-compe��ve
conduct post the consumma�on of the combina�on; and
The abuse of dominance, if and when it happens, would either be
taken up by the CCI suo moto or could be brought to its knowledge by
CUTS or any other en�ty.
The decision of the NCLAT can be accessed here with the case details as Compe��on Appeal (AT) No. 61 of 2022.
06
#4 The Madras HC dismissed writ pe��ons filed by
Pricol Limited holding that the CCI has the power to
examine a combina�on no�ce a�er the combina�on
has been effected.
On July 11, 2023, a Division Bench of the Madras High Court (Madras HC) dismissed writ pe��ons filed by
Pricol Limited (Pricol) reques�ng the Madras HC to: (i) prohibit the CCI from examining the Form II (No�ce) filed by
Minda Corpora�on Limited (Minda), and (ii) hold that the CCI cannot accept a no�ce of combina�on under Sec�on
6(2) of the Compe��on Act, post facto a�er the combina�on had been effected.
The Madras HC dismissed the writ pe��ons holding that the No�ce under Sec�on 6(2) of the Compe��on Act was
permissible even a�er the combina�on has been effected. The Madras HC observed that Regula�on 8 of the CCI
(Procedure in regard to the transac�on of Business rela�ng to Combina�ons) Regula�ons, 2011
(Combina�on Regula�ons), allows a party to post-facto file a no�ce to the CCI a�er the combina�on has been
effected. The CCI has the power to accept such no�ces under Sec�on 20(1) of the Compe��on Act. The Supreme
Court’s decision in SCM SolifertLimited and another v. CCI supports this interpreta�on.
The order of the Madras HC can be accessed here.
07
The order of the Delhi HC can be accessed here.
The order of the Delhi HC has been challenged by the CCI by way of a Special Leave Pe��on (SLP) before the
Supreme Court of India (Supreme Court). However, the SLP is currently in defect and will be subsequently listed
before the Supreme Court once the defects have been cured.
#5 The Delhi HC holds that the Controller of Patents has
the exclusive jurisdic�on to inquire into the
an�-compe��ve ac�ons of a patent holder who
exercises their rights under a patent.
On July 13, 2023, a Division Bench of the Delhi High Court (Delhi HC dismissed appeals/ pe��ons holding that the
Patents Act, 1970 (Patents Act) prevails over the Compe��on Act for an inquiry into the ac�ons of a patent
holder who exercise their rights under a patent. The decision of the Delhi HC was based on the following:
Only the Patents Regulator can inquire into the an�-compe��ve ac�ons of a patent
holder who exercises their rights under a patent. The Delhi HC held that the Patents Act is
a complete code on all issues pertaining to unreasonable condi�ons in patent licensing
agreements, abuse of status as a patent holder, inquiry in rela�on to and relief to be granted
for such conduct. Specifically, Chapter XVI of the Patents Act (�tled “Working of Patents,
Compulsory Licenses and Revoca�on”) regulates “unreasonable conditions in agreements of
licensing of patents, abuse of status as a patentee”. These factors, according to the Delhi
HC, are “nearly identical” to those that are required to be examined by the CCI. Therefore,
the Delhi HC held that on the issue under considera�on (that is not merely related to
an�-compe��ve agreements and abuse of dominant posi�on but such conduct by a
patent holder in the exercise of their rights under the Patents Act), the Patents Act is a
special statute and Chapter XVI being a subsequent statute must necessarily prevail over
the Compe��on Act.
The CCI, under Sec�on 3(5) of the Compe��on Act, cannot examine the reasonableness of
condi�ons imposed by a patent holder in the exercise of their rights under the patent.
The Delhi HC held that the Controller of Patents has exclusive jurisdic�on to examine
whether a patent holder has imposed unreasonable condi�ons under a licensing
agreement. The Delhi HC held that these condi�ons are exempted from any review by the
CCI under Sec�on 3(5) of the Compe��on Act.
Se�lement between par�es ends the dispute before the CCI. The Delhi HC also held that
the CCI does not have the power to con�nue its inves�ga�on if a se�lement is reached
between the informant and opposite party in a CCI proceeding. According to the Delhi HC,
the substance of the CCI proceedings was lost due to the se�lement between the par�es.
ELP Comment
The Delhi HC’s decision ousts the CCI’s jurisdic�on over issues rela�ng to the Patents Act. A
narrower interpreta�on of the decision would suggest that this ouster only extends towards compulsory
licensing of standard essen�al patents (SEPs). This approach is contrary to that of the regulators in the EU
and USA where the an�trust regulators examine allega�ons of abuse of dominance in rela�on to SEPs.
08
On July 28, 2023, the NCLAT upheld the CCI’s order dated March 15, 2023 (CCI Order), approving the acquisi�on of
100% of the shareholding in Hindusthan Na�onal Glass & Industries Limited (HNG), by AGI Greenpac Limited (AGI
Greenpac). The CCI sought a dives�ture of the Rishikesh plant of HNG to approve the proposed combina�on.
Four appeals were filed before the NCLAT against the CCI Order by: a) Independent Sugar Corpora�on Limited; b) U.P.
Glass Manufacturers Syndicate (UP Glass); c) Geeta & Company; and; d) HNG Industries Thozilalar Nala Sangam
(collec�vely, the Appellants). The Appellants argued that the CCI did not apply its mind and approved the
combina�on in a hurried manner, disregarding the due process to be followed.
In response, the CCI contended that none of the Appellants had any locus to challenge the CCI Order as an appeal
under Sec�on 53B of the Compe��on Act can only be filed by an ‘aggrieved person’. The CCI also submi�ed that due
process was followed in approving the combina�on and the modifica�on proposed had addressed the CCI’s concerns
of AAEC, among other things. Rejec�ng the CCI’s arguments on locus, the NCLAT proceeded to adjudicate the ma�er
on merits and dismissed the appeals, observing the following:
Annulment of the proceedings:
As per Sec�on 29(1) of the
Compe��on Act, a show cause
no�ce (SCN) must be issued to
both par�es to the combina�on
i.e., the acquirer and target en�ty.
However, the non-issuance of an
SCN to HNG alone was not
sufficient to quash the proceedings
before the CCI, given that the
combina�on was approved in
accordance with the statutory
procedures prescribed under
Sec�on 29 of the Compe��on Act
as well as the Combina�on
Regula�ons.
Right of public par�cipa�on:
The right of public par�cipa�on arises
once the Phase II inves�ga�on
under Sec�on 29(2) of the
Compe��on Act has been ini�ated by
the CCI. A Phase II inves�ga�on is not
compulsory as per Sec�on 29(2) of the
Compe��on Act if the CCI is convinced
with the response to the SCN
sugges�ng that the proposed
combina�on will not result in AAEC.
Thus, the CCI may decide not to
proceed further and grant its
approval to the combina�on.
CCI approved the acquisi�on a�er
a detailed considera�on of
proposed modifica�ons:
The NCLAT noted that the
CCI considered the
modifica�on proposed by AGI in
detail before accep�ng the
modifica�on and approving
the proposed acquisi�on.
Further, the NCLAT noted that
decision of an expert body, such
as the CCI, should not be
interfered with if it is in
accordance with the Act and the
regula�ons.
The decision of the NCLAT can be accessed here with case details as Compe��on Appeal (ATNo. 07 and 08 of 2023.
The order of the NCLAT has been challenged by the Appellants by way of a civil appeal before the Supreme Court
with case details as Civil Appeal No(s). 4924/2023. As per the order dated August 28, 2023, the Supreme Court
has adjourned the ma�er since the NCLAT’s orders in the insolvency appeals against HNG arising out of the same
ma�er are reserved.
The order of the Supreme Court can be accessed here.
#6 NCLAT dismisses all four appeals challenging CCI’s
approval of AGI Greenpac’s acquisi�on of HNG.
09
Snapshot of CCI’s latest jurisprudence on gun jumping in
Quarter 3 of 2023
MERGER CONTROL
Acquirer CCI’s observa�ons
Exemp�on
wrongly
claimed
Penalty Mi�ga�ng factors
The acquisi�on of 20% shareholding
in Bhar� Telemedia Limited (BTL)
from LMIL was ineligible for the
exemp�on claimed as LMIL enjoyed
considerable shareholding and a
host of rights in BTL, such as the
right to appoint a non-execu�ve
director on the board of BTL,
affirma�ve veto rights, rights in
subsidiaries, right to access the books,
accounts, records, proper�es, and
facili�es, among others, thereby
amoun�ng to the ability to exercise
material influence over BTL;
The acquisi�on of 0.664% shares in
Bhar� Airtel by LMIL was found to be
interconnected to the
abovemen�oned acquisi�on and the
two, together were required to be
no�fied to the CCI; and
The test for applicability of the Item 2
exemp�on illustrates that ‘joint
control’ and ‘sole control’ shall imply
the ability to exercise material
influence over the management or
affairs or strategic commercial
decisions of the target en�ty.
Schedule I,
Item 2
exemp�on
INR 1
Crore
None.
Bhar� Airtel
Ltd (Bhar�
Airtel)
and
Lion Meadow
Investment
Limited
(LMIL)
The combina�on was declared void ab
initio effec�vely making the
consumma�on of the combina�on
subject to penal�es for gun jumping
under Sec�on 43A of the Compe��on
Act.
The acquisi�on was not eligible for the
benefit of the Green Channel and the
declara�on in the no�ce was incorrect
and false since there were explicit
overlaps in ac�vi�es of target en�ty
and TPG Upswing’s por�olio company
UPL Corpora�on’s indirect subsidiary,
Arysta India.
Green
Channel
INR 55
Lakhs
None.
Pla�num
Jasmine A
2018 Trust,
ac�ng
through its
trustee
Pla�num Owl
C 2018 RSC
Limited, and
TPG Upswing
Ltd. (TPG
Upswing)
10
Acquirer CCI’s observa�ons
Exemp�on
wrongly
claimed
Penalty Mi�ga�ng factors
NTPC already held 25.51% equity
shareholding in Ratnagiri Gas & Power
Private Limited (RGPPL) and upon
acquiring a 35.47% equity stake in
RGPPL, its shareholding increased
from 25.51% to 60.98%, resul�ng in it
crossing the threshold of 50% for the
purpose of availing the benefit of the
Schedule I, Item 1A exemp�on.
The transac�on was required to be
no�fied to the CCI considering the
increased stake enjoyed by NTPC,
even if no addi�onal control rights
were conferred or the transac�on did
not result in change in control from
joint to sole control.
Schedule I,
Item 1A
exemp�on
INR 40
Lakhs
Bona fide inten�ons;
Full coopera�on and
disclosure from NTPC;
The crea�on of RGPPL
was a Government of
India (GOI) ini�a�ve,
The transac�on
neither caused an
AAEC nor was a
transfer from joint to
sole control;
No history of default,
and
Posi�ve impact of the
transac�on on
compe��on in the
power industry which
was fragmented and
highly compe��ve.
NTPC Ltd.
(NTPC)
Axis Bank erred in assuming that the
transac�on was eligible to avail the de
minimis exemp�on as both the assets
and the turnover crossed the
threshold prescribed under the
exemp�on;
Axis Bank was ineligible to avail Item 1
exemp�on since it had/has
representa�on on the board of CSC
e-Governance and also had the
inten�on to par�cipate in CSC’s
management or affairs; and
Axis Bank could not be absolved of the
duty to no�fy the transac�on solely on
the grounds of an error made in the
assessment of applicability of the de
minimis exemp�on, either on
bonafide or malafide grounds.
Schedule I,
Item 1
exemp�on
INR 40
Lakhs
Bonafide inten�ons;
Extension of full
coopera�on by Axis
Bank;
No history of default
in the past; and
The objec�ve of the
transac�on was to
support the GOI’s
ini�a�ve towards
financial inclusion.
Axis Bank
Ltd. (Axis
Bank)
Cummins failed to observe the
stands�ll obliga�on in terms of
Sec�on 6(2A) of the Compe��on Act
of wai�ng for 210 (two hundred ten)
days from the date of giving no�ce to
the CCI or date of approval by the CCI,
De
Minimis
Exemp�on
INR 10
Lakhs
Extension of full
coopera�on by
Cummins with the
CCI; and
Cummins
Inc.
(Cummins)
Acquirer CCI’s observa�ons
Exemp�on
wrongly
claimed
Penalty Mi�ga�ng factors
MassMutual had only considered the
aggregate value of assets of target’s
subsidiaries in India based on their
financial statements, when the
aggregate value of assets of both
en��es i.e., target’s subsidiaries in
India as well as target’s mutual fund
business in India were to be
considered and in either case, the
threshold was breached.
In respect of turnover, MassMutual
failed to account for target’s mutual
fund business in India and only
accounted for target’s subsidiaries in
India.
De
Minimis
Exemp�on
INR 5
Lakhs
None.
Massachuse�s
Mutual Life
Insurance
Company
(MassMutual)
whichever is earlier and
consummated the transac�on.
For a liability under Sec�on 43A of the
Compe��on Act, the lack of inten�on
is immaterial. Therefore, Cummins
could not be absolved of its duty to
no�fy the transac�on to the CCI.
Voluntary no�fica�on
by Cummins upon
being made aware of
the requirement to
no�fy.
11
With these appointments, the total strength of the CCI stands at four, including the chairperson, Ms. Ravneet
Kaur, who was appointed earlier this year.
12
OTHER DEVELOPMENTS
#1 Three new members appointed by the CCI.
Following the recent re�rement of two members, i.e., Ms. Sangeeta Verma and Mr. Bhagwant Singh Bishnoi, the
Appointments Commi�ee of the Cabinet, GOI, approved the appointment of three new members to the CCI:
01 02 03
Anil Agrawal,
former Director
General of Police
and former
Addi�onal
Secretary at the
Department for
Promo�on of
Industry and
Internal Trade;
Deepak Anurag, re�red
Deputy Comptroller
and Auditor General;
and
Sweta Kakkad, an
advocate with
experience in the
private sector as an
interim Chief
Compliance Officer for
WhatsApp. Notably,
Ms. Kakkad is the first
member with
private-sector
experience to be
appointed.
13
01
02
03
The CCI is currently taking into considera�on the stakeholder comments received on these dra� regula�ons. Once
this process is complete, the relevant provisions of the Amendment Act and the final regula�ons are expected to
be brought into effect by way of a Gaze�e No�fica�on.
The Compe��on (Amendment) Act, 2023 (Amendment Act)
introduced provisions rela�ng to ‘se�lements’ and
‘commitments’ under the Compe��on Act.
In this regard, the CCI published the dra� CCI (Se�lement)
Regula�ons, 2023 (Dra� Se�lement Regula�ons) and the dra�
CCI (Commitment) Regula�ons, 2023 (Dra� Commitment
Regula�ons) on August 23, 2023 (collec�vely Dra� Se�lement
and Commitment Regula�ons) seeking comments from
stakeholders.
The Dra� Se�lement and Commitment Regula�ons set out the
process for implemen�ng se�lement and commitment
procedures including: (i) form and contents of an applica�on;
(ii) �melines for filing an applica�on; (iii) filing of objec�ons/
sugges�ons to such an applica�on; (iv) determina�on of
se�lement amount; (v) commitment/ se�lement order; (vi)
monitoring and implementa�on of the se�lement/
commitment.
The Amendment Act also introduced significant amendments
to the provisions rela�ng to combina�ons under the
Compe��on Act.
In this regard, the CCI published the dra� CCI (Combina�on)
Regula�ons, 2023 (Dra� Combina�on Regula�ons) on
September 05, 2023, seeking comments from stakeholders.
The Dra� Combina�on Regula�ons is intended to replace the
exis�ng Combina�on Regula�ons and seeks to implement the
newly introduced combina�on provisions of the Amendment
Act. The Dra� Combina�on Regula�ons sets out the process for
opera�onalizing various amendments pertaining to the merger
control provisions under the Amendment Act including: (i) the
deal value threshold; (ii) substan�al business opera�ons in
India; (iii) open offer acquisi�ons, (iv) process for proposing
modifica�ons, among others.
01
02
03
#2 The CCI releases dra� regula�ons for
stakeholder consulta�ons.
I. Dra� Commitment and Se�lement Regula�ons
II. Dra� Combina�on Regula�ons
MUMBAI
9th Floor, Mafatlal Centre
Vidhan Bhavan Marg
Nariman Point, Mumbai 400 021
T: +91 22 6636 7000
AHMEDABAD
C-507/508, 5th Floor, Titanium Square
Thaltej Cross Roads, SG Highway,
Ahmedabad - 380054
T: +91 79460 04854
PUNE
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T: +91 20 4912 7400
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CHENNAI
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Chennai 600 017
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Competition-Newsletter-Q3-of-2023-Final.pdf

  • 1. COMPETITION LAW & POLICY NEWSLETTER INSIDE SECTORS COVERED IN THIS ISSUE CCI closes inves�ga�on against Tata Motors, on allega�ons of an�-compe��ve restric�ons on its dealers. CCI notes correc�ve ac�on by Chemists Associa�ons and Chandigarh Housing Board; refrains from imposi�on of monetary penal�es. NCLAT upholds CCI’s approval of AGI Greenpac’s acquisi�on of Hindusthan Na�onal Glass and Industries. NCLAT upholds CCI’s dismissal of CUTS’ allega�ons against the PVR-INOX merger. Madras HC upholds CCI’s power to post-facto examine a no�ce of a combina�on. Delhi HC Division Bench rules that the Patents Act prevails over the Competition Act on issues relating to exercise of patent rights. Key Enforcement Ma�ers Quarter 3 of 2023 CCI imposes penal�es for gun jumping on en��es including Bhar� Airtel, Axis Bank. Merger Control Other Key Developments Mr. Anil Agarwal, Mr. Deepak Anurag, and Ms. Sweta Kakkad appointed as members of the CCI. CCI releases dra� regula�ons on Commitments and Se�lements and Combina�ons for stakeholder consulta�on. Manufacturing Automobiles /Auto components Telecom Media and Entertainment Banking & Finance Pharmaceu�cal
  • 2. A QUICK SNAPSHOT Mergers & Acquisi�ons Enforcement Ma�ers 01 02 03 04 05 Number of cases closed a�er inves�ga�on: 3 Number of inves�ga�ons ini�ated: 0 Total amount of penalty imposed INR 0 Number of cases where viola�ons were found: 2 Number of cases closed at prima facie stage: 15 01 Total combina�ons filed: 11 Combina�ons approved: 10 Form II filings: 1 Combina�ons pending: 11 Green Channel filings: 3 Form I filings: 9
  • 3. 02 ENFORCEMENT #1 CCI closes inves�ga�on against Tata Motors no�ng lack of AAEC in the market. On 23 August 2023, the Compe��on Commission of India (CCI) closed an inves�ga�on against Tata Motors Limited (Tata Motors) on allega�ons of abuse of dominance and imposi�on of ver�cal restraints on its dealers. The informa�on, filed by two authorized dealers of Tata Motors, alleged that Tata Motors: (i) abused its dominant posi�on by dicta�ng vehicle off-take preferences to dealers; (ii) imposed restric�ve clauses in its dealership agreements by requiring dealers to obtain a no-objec�on cer�ficate (NOC) before venturing into or acquiring new businesses; and (iii) restricted dealers from selling vehicles outside their designated territory (collec�vely referred to as Impugned Conduct). The Director General (DG), a�er having found Tata Motors dominant in the ‘market for the manufacture and sale of commercial vehicles in India’ concluded that Tata Motors imposed off-take requirements and territorial restric�ons on its dealers. However, the DG did not find a contraven�on on the allega�on of the NOC requirement as there was no evidence to show that Tata Motors had unreasonably withheld its consent to allow dealers from engaging in new business as long as the dealer had the financial ability to sustain different businesses. The CCI also agreed with the DG that the mere inclusion of an NOC requirement for the dealers, without evidence of it being unjustly enforced, could not be held as a contraven�on. However, the CCI disagreed with the DG on the other findings no�ng that (i) the imposi�on of off-take requirement was found to be contradicted by several dealer tes�monials; and (ii) there was no substan�al evidence to show that the territorial restric�ons on the dealers led to an AAEC in the market. As far as the allega�ons with respect to the territorial restric�ons imposed on the dealers were concerned the CCI noted that such restric�ons placed by Tata Motors did not lead to an appreciable adverse effect on compe��on (AAEC) in the market. The CCI took note of the jus�fica�ons put forth by Tata Motors which included ensuring that dealers do not free-ride another dealer’s marke�ng and investments incen�vizing dealers to invest in the dealership, enhancing intra-brand compe��on, etc. Further, the CCI specifically noted that the informants were long-standing dealers of Tata Motors and had never raised the same concerns before and that they approached the CCI only owing to the termina�on/ non-renewal of their dealership agreements with Tata Motors. The order of the CCI can be accessed here.
  • 4. 03 #2 No monetary penal�es in two recent cases where the opposite par�es took correc�ve ac�on to address the CCI’s concerns before the hearing. On August 22, 2023 and 23, 2023, in two separate cases against the Chandigarh Housing Board (CHB) and Chemist Associa�on, Raisingh Nagar and Sri Ganganagar Chemists Associa�on (collec�vely, Chemists Associa�ons) respec�vely, the CCI passed orders direc�ng the CHB and Chemist Associa�ons not to engage in an�-compe��ve conduct. However, the CCI did not impose monetary penal�es since these opposite par�es took correc�ve ac�on to address CCI’s concerns by withdrawing the resolu�on direc�ng boyco� of the informant in one of the instances. A snapshot of the CCI’s findings is provided below: Chandigarh Housing Board Failure to men�on the �meline for comple�on of the relevant project in the brochure/ other documents and only men�oning that possession would be handed over upon comple�on of formali�es and receipt of full payment; and Levying interest for one month for a delay of one day in payment of the installment amount and no provision for charging of interest in such a manner was included under the brochure/ other documents. The CCI noted that CHB was dominant in the market for ‘the provision of services for development and sale of residential flats in the Union Territory of Chandigarh’ and found CHB to be abusing its dominant posi�on in contraven�on of Sec�on 4 of the Compe��on Act, 2002 (Compe��on Act) for: The CCI noted that CHB had taken steps, including, (i) registering new schemes with the Real Estate Regulatory Authority, Chandigarh; (ii) efforts to complete the construc�on of flats at the earliest; and (iii) discon�nued charging interest for a full month for a few days’ delay in payment of installments. Therefore, the CCI directed the CHB to cease and desist from engaging in the an�-compe��ve prac�ces but did not impose any monetary penalty. The order of the CCI can be accessed here. Finding Brief Chemist Associa�on, Raisingh Nagar and Sri Ganganagar Chemists Associa�on Issuing no�ces clearly indica�ng a decision to boyco� the Informant and threatening such ac�on against the Informant in other districts as well. The boyco� was to seek higher margins and control over the stockists. The CCI found that the Chemists Associa�ons, along with their presidents, had engaged in an�-compe��ve non-coopera�on/ boyco� of the products of Solar Life Sciences Medicare Private Limited (Informant) for:
  • 5. 04 However, during the penalty assessment, the CCI noted that the Chemists Associa�ons were opera�onal at the tehsil/ district level and were also first-�me offenders. The presidents of two of the Chemists Associa�ons also highlighted the welfare mo�ve on their part towards the members of the Chemists Associa�ons and contended that their respec�ve associa�ons received no fees/payments from the members for membership or any other purpose. During the hearing, one such president also stated that he was already the stockist of Informant’s products. Par�cularly, resolu�on boyco�ng the Informant was also withdrawn by the Chemists Associa�ons. The CCI directed the Chemists Associa�ons and their presidents to cease and desist from engaging in an�-compe��ve conduct and did not impose any monetary penalty. The order of the CCI can be accessed here.
  • 6. 05 On August 10, 2023, the Na�onal Company Law Appellate Tribunal (NCLAT) upheld the CCI’s order dated September 13, 2022 (CCI Order), dismissing a complaint filed by Consumer Unity and Trust Society (CUTS) alleging a contraven�on of Sec�on 3 of the Compe��on Act by PVR Limited and (PVR) and INOX Leisure Limited (INOX). CUTS alleged that PVR and INOX entered into an an�-compe��ve agreement by entering into a merger agreement aimed at crea�ng the largest and the dominant cinema exhibi�on en�ty i.e., ‘PVR INOX Limited’ (PVR INOX). CUTS, in its complaint to the CCI has alleged that the merger of PVR and INOX would likely cause AAEC in the market. The CCI dismissed the allega�ons no�ng that for examina�on under Sec�on 3 of the Compe��on Act, an an�-compe��ve conduct must exist, and the mere apprehension of any future an�-compe��ve conduct on account of dominance resul�ng in AAEC is not sufficient. Notably, the CCI had observed that Sec�on 3 of the Compe��on Act deals with scru�nizing the likelihood of AAEC in terms of any conduct which is an an�-compe��ve agreement and not a likelihood of conduct itself. Such assessment, according to the CCI, is mainly ex-ante and was not per�nent to the circumstances of this case. CUTS filed an appeal before the NCLAT challenging the CCI Order. The NCLAT agreed with the CCI and dismissed the appeal filed by CUTS on following grounds: #3 NCLAT upholds CCI’s order dismissing CUTS’ allega�ons against the PVR- INOX merger. The case pertained to a merger resul�ng in a combina�on and not an an�-compe��ve agreement subject to scru�ny under Sec�on 3 of the Compe��on Act; Dominance per se is not bad and the provisions under Sec�on 4 of the Compe��on Act would be a�racted in case of any an�-compe��ve conduct post the consumma�on of the combina�on; and The abuse of dominance, if and when it happens, would either be taken up by the CCI suo moto or could be brought to its knowledge by CUTS or any other en�ty. The decision of the NCLAT can be accessed here with the case details as Compe��on Appeal (AT) No. 61 of 2022.
  • 7. 06 #4 The Madras HC dismissed writ pe��ons filed by Pricol Limited holding that the CCI has the power to examine a combina�on no�ce a�er the combina�on has been effected. On July 11, 2023, a Division Bench of the Madras High Court (Madras HC) dismissed writ pe��ons filed by Pricol Limited (Pricol) reques�ng the Madras HC to: (i) prohibit the CCI from examining the Form II (No�ce) filed by Minda Corpora�on Limited (Minda), and (ii) hold that the CCI cannot accept a no�ce of combina�on under Sec�on 6(2) of the Compe��on Act, post facto a�er the combina�on had been effected. The Madras HC dismissed the writ pe��ons holding that the No�ce under Sec�on 6(2) of the Compe��on Act was permissible even a�er the combina�on has been effected. The Madras HC observed that Regula�on 8 of the CCI (Procedure in regard to the transac�on of Business rela�ng to Combina�ons) Regula�ons, 2011 (Combina�on Regula�ons), allows a party to post-facto file a no�ce to the CCI a�er the combina�on has been effected. The CCI has the power to accept such no�ces under Sec�on 20(1) of the Compe��on Act. The Supreme Court’s decision in SCM SolifertLimited and another v. CCI supports this interpreta�on. The order of the Madras HC can be accessed here.
  • 8. 07 The order of the Delhi HC can be accessed here. The order of the Delhi HC has been challenged by the CCI by way of a Special Leave Pe��on (SLP) before the Supreme Court of India (Supreme Court). However, the SLP is currently in defect and will be subsequently listed before the Supreme Court once the defects have been cured. #5 The Delhi HC holds that the Controller of Patents has the exclusive jurisdic�on to inquire into the an�-compe��ve ac�ons of a patent holder who exercises their rights under a patent. On July 13, 2023, a Division Bench of the Delhi High Court (Delhi HC dismissed appeals/ pe��ons holding that the Patents Act, 1970 (Patents Act) prevails over the Compe��on Act for an inquiry into the ac�ons of a patent holder who exercise their rights under a patent. The decision of the Delhi HC was based on the following: Only the Patents Regulator can inquire into the an�-compe��ve ac�ons of a patent holder who exercises their rights under a patent. The Delhi HC held that the Patents Act is a complete code on all issues pertaining to unreasonable condi�ons in patent licensing agreements, abuse of status as a patent holder, inquiry in rela�on to and relief to be granted for such conduct. Specifically, Chapter XVI of the Patents Act (�tled “Working of Patents, Compulsory Licenses and Revoca�on”) regulates “unreasonable conditions in agreements of licensing of patents, abuse of status as a patentee”. These factors, according to the Delhi HC, are “nearly identical” to those that are required to be examined by the CCI. Therefore, the Delhi HC held that on the issue under considera�on (that is not merely related to an�-compe��ve agreements and abuse of dominant posi�on but such conduct by a patent holder in the exercise of their rights under the Patents Act), the Patents Act is a special statute and Chapter XVI being a subsequent statute must necessarily prevail over the Compe��on Act. The CCI, under Sec�on 3(5) of the Compe��on Act, cannot examine the reasonableness of condi�ons imposed by a patent holder in the exercise of their rights under the patent. The Delhi HC held that the Controller of Patents has exclusive jurisdic�on to examine whether a patent holder has imposed unreasonable condi�ons under a licensing agreement. The Delhi HC held that these condi�ons are exempted from any review by the CCI under Sec�on 3(5) of the Compe��on Act. Se�lement between par�es ends the dispute before the CCI. The Delhi HC also held that the CCI does not have the power to con�nue its inves�ga�on if a se�lement is reached between the informant and opposite party in a CCI proceeding. According to the Delhi HC, the substance of the CCI proceedings was lost due to the se�lement between the par�es. ELP Comment The Delhi HC’s decision ousts the CCI’s jurisdic�on over issues rela�ng to the Patents Act. A narrower interpreta�on of the decision would suggest that this ouster only extends towards compulsory licensing of standard essen�al patents (SEPs). This approach is contrary to that of the regulators in the EU and USA where the an�trust regulators examine allega�ons of abuse of dominance in rela�on to SEPs.
  • 9. 08 On July 28, 2023, the NCLAT upheld the CCI’s order dated March 15, 2023 (CCI Order), approving the acquisi�on of 100% of the shareholding in Hindusthan Na�onal Glass & Industries Limited (HNG), by AGI Greenpac Limited (AGI Greenpac). The CCI sought a dives�ture of the Rishikesh plant of HNG to approve the proposed combina�on. Four appeals were filed before the NCLAT against the CCI Order by: a) Independent Sugar Corpora�on Limited; b) U.P. Glass Manufacturers Syndicate (UP Glass); c) Geeta & Company; and; d) HNG Industries Thozilalar Nala Sangam (collec�vely, the Appellants). The Appellants argued that the CCI did not apply its mind and approved the combina�on in a hurried manner, disregarding the due process to be followed. In response, the CCI contended that none of the Appellants had any locus to challenge the CCI Order as an appeal under Sec�on 53B of the Compe��on Act can only be filed by an ‘aggrieved person’. The CCI also submi�ed that due process was followed in approving the combina�on and the modifica�on proposed had addressed the CCI’s concerns of AAEC, among other things. Rejec�ng the CCI’s arguments on locus, the NCLAT proceeded to adjudicate the ma�er on merits and dismissed the appeals, observing the following: Annulment of the proceedings: As per Sec�on 29(1) of the Compe��on Act, a show cause no�ce (SCN) must be issued to both par�es to the combina�on i.e., the acquirer and target en�ty. However, the non-issuance of an SCN to HNG alone was not sufficient to quash the proceedings before the CCI, given that the combina�on was approved in accordance with the statutory procedures prescribed under Sec�on 29 of the Compe��on Act as well as the Combina�on Regula�ons. Right of public par�cipa�on: The right of public par�cipa�on arises once the Phase II inves�ga�on under Sec�on 29(2) of the Compe��on Act has been ini�ated by the CCI. A Phase II inves�ga�on is not compulsory as per Sec�on 29(2) of the Compe��on Act if the CCI is convinced with the response to the SCN sugges�ng that the proposed combina�on will not result in AAEC. Thus, the CCI may decide not to proceed further and grant its approval to the combina�on. CCI approved the acquisi�on a�er a detailed considera�on of proposed modifica�ons: The NCLAT noted that the CCI considered the modifica�on proposed by AGI in detail before accep�ng the modifica�on and approving the proposed acquisi�on. Further, the NCLAT noted that decision of an expert body, such as the CCI, should not be interfered with if it is in accordance with the Act and the regula�ons. The decision of the NCLAT can be accessed here with case details as Compe��on Appeal (ATNo. 07 and 08 of 2023. The order of the NCLAT has been challenged by the Appellants by way of a civil appeal before the Supreme Court with case details as Civil Appeal No(s). 4924/2023. As per the order dated August 28, 2023, the Supreme Court has adjourned the ma�er since the NCLAT’s orders in the insolvency appeals against HNG arising out of the same ma�er are reserved. The order of the Supreme Court can be accessed here. #6 NCLAT dismisses all four appeals challenging CCI’s approval of AGI Greenpac’s acquisi�on of HNG.
  • 10. 09 Snapshot of CCI’s latest jurisprudence on gun jumping in Quarter 3 of 2023 MERGER CONTROL Acquirer CCI’s observa�ons Exemp�on wrongly claimed Penalty Mi�ga�ng factors The acquisi�on of 20% shareholding in Bhar� Telemedia Limited (BTL) from LMIL was ineligible for the exemp�on claimed as LMIL enjoyed considerable shareholding and a host of rights in BTL, such as the right to appoint a non-execu�ve director on the board of BTL, affirma�ve veto rights, rights in subsidiaries, right to access the books, accounts, records, proper�es, and facili�es, among others, thereby amoun�ng to the ability to exercise material influence over BTL; The acquisi�on of 0.664% shares in Bhar� Airtel by LMIL was found to be interconnected to the abovemen�oned acquisi�on and the two, together were required to be no�fied to the CCI; and The test for applicability of the Item 2 exemp�on illustrates that ‘joint control’ and ‘sole control’ shall imply the ability to exercise material influence over the management or affairs or strategic commercial decisions of the target en�ty. Schedule I, Item 2 exemp�on INR 1 Crore None. Bhar� Airtel Ltd (Bhar� Airtel) and Lion Meadow Investment Limited (LMIL) The combina�on was declared void ab initio effec�vely making the consumma�on of the combina�on subject to penal�es for gun jumping under Sec�on 43A of the Compe��on Act. The acquisi�on was not eligible for the benefit of the Green Channel and the declara�on in the no�ce was incorrect and false since there were explicit overlaps in ac�vi�es of target en�ty and TPG Upswing’s por�olio company UPL Corpora�on’s indirect subsidiary, Arysta India. Green Channel INR 55 Lakhs None. Pla�num Jasmine A 2018 Trust, ac�ng through its trustee Pla�num Owl C 2018 RSC Limited, and TPG Upswing Ltd. (TPG Upswing)
  • 11. 10 Acquirer CCI’s observa�ons Exemp�on wrongly claimed Penalty Mi�ga�ng factors NTPC already held 25.51% equity shareholding in Ratnagiri Gas & Power Private Limited (RGPPL) and upon acquiring a 35.47% equity stake in RGPPL, its shareholding increased from 25.51% to 60.98%, resul�ng in it crossing the threshold of 50% for the purpose of availing the benefit of the Schedule I, Item 1A exemp�on. The transac�on was required to be no�fied to the CCI considering the increased stake enjoyed by NTPC, even if no addi�onal control rights were conferred or the transac�on did not result in change in control from joint to sole control. Schedule I, Item 1A exemp�on INR 40 Lakhs Bona fide inten�ons; Full coopera�on and disclosure from NTPC; The crea�on of RGPPL was a Government of India (GOI) ini�a�ve, The transac�on neither caused an AAEC nor was a transfer from joint to sole control; No history of default, and Posi�ve impact of the transac�on on compe��on in the power industry which was fragmented and highly compe��ve. NTPC Ltd. (NTPC) Axis Bank erred in assuming that the transac�on was eligible to avail the de minimis exemp�on as both the assets and the turnover crossed the threshold prescribed under the exemp�on; Axis Bank was ineligible to avail Item 1 exemp�on since it had/has representa�on on the board of CSC e-Governance and also had the inten�on to par�cipate in CSC’s management or affairs; and Axis Bank could not be absolved of the duty to no�fy the transac�on solely on the grounds of an error made in the assessment of applicability of the de minimis exemp�on, either on bonafide or malafide grounds. Schedule I, Item 1 exemp�on INR 40 Lakhs Bonafide inten�ons; Extension of full coopera�on by Axis Bank; No history of default in the past; and The objec�ve of the transac�on was to support the GOI’s ini�a�ve towards financial inclusion. Axis Bank Ltd. (Axis Bank) Cummins failed to observe the stands�ll obliga�on in terms of Sec�on 6(2A) of the Compe��on Act of wai�ng for 210 (two hundred ten) days from the date of giving no�ce to the CCI or date of approval by the CCI, De Minimis Exemp�on INR 10 Lakhs Extension of full coopera�on by Cummins with the CCI; and Cummins Inc. (Cummins)
  • 12. Acquirer CCI’s observa�ons Exemp�on wrongly claimed Penalty Mi�ga�ng factors MassMutual had only considered the aggregate value of assets of target’s subsidiaries in India based on their financial statements, when the aggregate value of assets of both en��es i.e., target’s subsidiaries in India as well as target’s mutual fund business in India were to be considered and in either case, the threshold was breached. In respect of turnover, MassMutual failed to account for target’s mutual fund business in India and only accounted for target’s subsidiaries in India. De Minimis Exemp�on INR 5 Lakhs None. Massachuse�s Mutual Life Insurance Company (MassMutual) whichever is earlier and consummated the transac�on. For a liability under Sec�on 43A of the Compe��on Act, the lack of inten�on is immaterial. Therefore, Cummins could not be absolved of its duty to no�fy the transac�on to the CCI. Voluntary no�fica�on by Cummins upon being made aware of the requirement to no�fy. 11
  • 13. With these appointments, the total strength of the CCI stands at four, including the chairperson, Ms. Ravneet Kaur, who was appointed earlier this year. 12 OTHER DEVELOPMENTS #1 Three new members appointed by the CCI. Following the recent re�rement of two members, i.e., Ms. Sangeeta Verma and Mr. Bhagwant Singh Bishnoi, the Appointments Commi�ee of the Cabinet, GOI, approved the appointment of three new members to the CCI: 01 02 03 Anil Agrawal, former Director General of Police and former Addi�onal Secretary at the Department for Promo�on of Industry and Internal Trade; Deepak Anurag, re�red Deputy Comptroller and Auditor General; and Sweta Kakkad, an advocate with experience in the private sector as an interim Chief Compliance Officer for WhatsApp. Notably, Ms. Kakkad is the first member with private-sector experience to be appointed.
  • 14. 13 01 02 03 The CCI is currently taking into considera�on the stakeholder comments received on these dra� regula�ons. Once this process is complete, the relevant provisions of the Amendment Act and the final regula�ons are expected to be brought into effect by way of a Gaze�e No�fica�on. The Compe��on (Amendment) Act, 2023 (Amendment Act) introduced provisions rela�ng to ‘se�lements’ and ‘commitments’ under the Compe��on Act. In this regard, the CCI published the dra� CCI (Se�lement) Regula�ons, 2023 (Dra� Se�lement Regula�ons) and the dra� CCI (Commitment) Regula�ons, 2023 (Dra� Commitment Regula�ons) on August 23, 2023 (collec�vely Dra� Se�lement and Commitment Regula�ons) seeking comments from stakeholders. The Dra� Se�lement and Commitment Regula�ons set out the process for implemen�ng se�lement and commitment procedures including: (i) form and contents of an applica�on; (ii) �melines for filing an applica�on; (iii) filing of objec�ons/ sugges�ons to such an applica�on; (iv) determina�on of se�lement amount; (v) commitment/ se�lement order; (vi) monitoring and implementa�on of the se�lement/ commitment. The Amendment Act also introduced significant amendments to the provisions rela�ng to combina�ons under the Compe��on Act. In this regard, the CCI published the dra� CCI (Combina�on) Regula�ons, 2023 (Dra� Combina�on Regula�ons) on September 05, 2023, seeking comments from stakeholders. The Dra� Combina�on Regula�ons is intended to replace the exis�ng Combina�on Regula�ons and seeks to implement the newly introduced combina�on provisions of the Amendment Act. The Dra� Combina�on Regula�ons sets out the process for opera�onalizing various amendments pertaining to the merger control provisions under the Amendment Act including: (i) the deal value threshold; (ii) substan�al business opera�ons in India; (iii) open offer acquisi�ons, (iv) process for proposing modifica�ons, among others. 01 02 03 #2 The CCI releases dra� regula�ons for stakeholder consulta�ons. I. Dra� Commitment and Se�lement Regula�ons II. Dra� Combina�on Regula�ons
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