The document discusses notifiability of merger control in various jurisdictions including the USA, UK, South Africa, and Brazil. It summarizes the key aspects of merger control regimes in these countries such as the regulatory body, applicable laws, notification requirements, thresholds, and exemptions. It then examines issues with India's notification regime such as high asset and turnover thresholds. It analyzes the Flipkart-Jabong deal and argues it should have been notified due to market share concerns despite being below thresholds. The document concludes with suggestions like updating thresholds annually and monitoring small mergers to strengthen India's merger control framework.

1. PRESENTATION
ON
NOTIFIABILITY OF MERGER CONTROL;A
COMPARATIVE ANALYSIS WITH JURISDICTION
U.S.A.,U.K.,SOUTH AFRICA,BRAZIL
GUIDE PRESENTED BY
MR. VIPUL PURI JITENDRA SHARDA
Deputy Director
Combination Department of CCI
Competition Commission of India

2. WHAT IS “COMBINATION”
UNDER COMPETITION ACT,2002
• Acquisition of control, shares, voting rights or assets [Section
5(a)]
• Acquisition of control by a person over an enterprise where
such person has control over another enterprise engaged in
similar or identical businesses [Section 5(b)]
• Mergers and Amalgamations [Section 5(c)]
• Reportable when-
 The combining parties exceed the thresholds set in Section 5
and as modified by the Government Notifications
• Which “combinations” are prohibited/void-
 Those which cause or are likely to cause “appreciable adverse
effect on competition “ within the “relevant market” in India
[Section 6(1) read with Section 20(4)]

3. THRESHOLDS FOR NOTIFICATION TO CCI*
Current thresholds for the purpose of Section 5 of the
Act are as follows:
Criteria Assets Turnover
Only
within
India
Enterprise
level
2000 INR Cr Rs. 6000 Cr
Group Rs. 8,000 Cr Rs 24,000 Cr
Within
and
outside
India
Enterprise
level
US $ 1 billion
With at least more than
1000 INR crore in India
US $ 3 billion
with at least Rs. 3000 INR cr
in India
Group US $ 4 billion
with at least Rs. 1000 cr
in India
US$ 12 billion
with at least Rs. 3000 cr in
India
•Assets include intangible assets, for instance, brand value, value of
goodwill, or value of copyright, patent, permitted use, collective mark, etc.
•Turnover- includes value of sales or services.
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4. TRIGGERING EVENTS FOR NOTIFICATION
*
4
•If the threshold limits are met, then a “Notice” is
required to be given to the CCI , in the “form” and
with the “fee” (prescribed in Combination Regulations
by CCI) , within 30 days of the occurrence of the
following events under Section 6 (2):
Approval of a proposal relating to the merger or
amalgamation by the “board of directors” (term
explained now in Combination Regulations) of the
enterprises concerned. [relates to section 5( c).]
OR
Execution of any agreement or “other document”
(term explained now in Combination Regulations) for
acquisition of shares, control, voting rights or assets
[relates to Section 5(a) and 5(b)].

5. Central Government has , on 3 March,2016, also revised
notified certain specific exemptions ,in public interest, from the
definition of combination under the Act, for a period of 5 years ,
as under :
An enterprise, whose control, shares, voting rights or assets
are being acquired (“target enterprise”) having assets of the
value of not more than INR 350 crores in India or turnover of
not more than INR 1000 crores;
 Section 45 of Banking Regulation Act
EXEMPTIONS-BY GOVERNMENT
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6. Jurisdiction South Africa United
Kingdom
United State Of
America
Brazil
Regulator Competition
Commission
Competition
and Markets
Authority
Federal Trade
Commission and
Department of Justice
Administrative
Council for Economic
Defense, Secretariat
of Economic
Monitoring
Key Legislation The Competition Act The Enterprise
Act 2002
The Clayton Act and
Hart-Scott-Rodino
Antitrust
Improvement Act
The Brazilian
Competition Law
Is there a merger
control regime and
is it Mandatory?
Yes, Mandatory
Notification system
Voluntary
Notification
system
Yes, Mandatory
Notification system
Yes, Mandatory
Notification
Is there is threshold
limit?
Yes Yes Yes, every fiscal year
adjust with GDP
Yes
Is Provision for small
merger?
Yes, Voluntary
notification (if there
are Competition
concerns at stake)
No No No
Is there Any
exemption?
No, all merger subject
to notification
No Yes No
COMPARISON

7. Examination of efficacy of
present notification regime
• Threshold limit based notification
• Consistent with international practices
• Issues and Limitations
– threshold limit of assets and turnover for trigger may be very high. There
are instance, where any Combination is might practice the anti-
competitive but due the market size is lower than the threshold limit, it
would not covered under any regulation and Act, which give escape
route to the enterprise for notifiable scrutiny of the Competition
Commission of India.
– No separate provisions for different industries or small
mergers

8. Examination of deminimis
exemption
• The threshold based notification limitation is compounded
with either/or deminimis exemption
– An enterprise, whose control, shares, voting rights or assets are being
acquired (“target enterprise”) having assets of the value of not more
than INR 350 crores in India or turnover of not more than INR 1000
crores;
1)If the corporation is the exporter – No assets India, may be
deriving substantial turnover
2)Certain industries work on business models in which assets
are less – E Commerce – Marketplace model

9. CASE OF THE FLIPKART-JABONG DEAL
• Global Fashion Group, as part of its effort to accelerate profits, has sold Jabong to
Flipkart Group for $70 million in cash.
• the turnover of Jabong was Rs 869 crore in the financial year of 2015, which is less
than Rs 1,000 crore. And going by the nature of business, the asset base of an e-
portal should rather be less than Rs 350.
• The acquisition of Jabong will help e-commerce company Flipkart strengthen its
position and control almost 70% market share in India's growing online apparel
shopping segment.
The legal issue is that whether this deal would trigger the section 5 of the
Competition Act or not?
According to exempted notification, the jabong have asset base and turnover were
lower than the requisite thresholds as per the notification, if an acquired entity
has an asset base of less than Rs 350 crore or turnover of less than Rs 1,000 crore,
the acquisition of such an entity is exempt from Section 5 of the Act. But going by
the market share, they are the main players of the market. If we combined
flipkart, myntra, jabong market share it would create 70% share of the market.

10. CONCLUSION AND SUGGESTION
The Competition Act, 2002 has binding provisions under section 49
“to promote the provisions of the law through public awareness
campaigns amongst stakeholders.” Furthermore, Competition Act,
also vests power to the Competition Commission of India under
section 64 “to frame regulations to conduct the business of the
Competition Commission of India in accordance with the provisions
of the enactment.” By combining two provisions of the law together,
CCI may come with the guidelines and notification for the next
practices in international market.
1.the CCI may also come up with Merger Guidelines for information of
general public and stakeholders.
2.Competition Commission should also monitor those Combination,
which are small merger but may raise the competition concern in
Indian market.
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11. CONCLUSION AND SUGGESTION
3. CCI to include the cognizance of the investigation on the basis
of their market share and other relevant factors.
4.The time limit of the threshold limit is very long, the threshold
limit should be adjust every year with the GDP, which is same
practice adopted the U.S.A.
5.The term in the exemption notification used as “either/or” in
assets or turnover limit, it should be replaced by the “And”.
6.Proper coordinateness with the multiple jurisdiction
regulatory body i.e. SEBI, RBI, to regulate the merger and
acquisition.

12. THANKS YOU