COMPETITION COMMISSION OF INDIA (PROCEDURE IN REGARD TO THE TRANSACTION OF BUSINESS RELATING TO COMBINATIONS) REGULATIONS, 2011
(1) These regulations may be called the Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Regulations, 2011.
(2) They shall come into force on 1st day of June, 2011.
(1) In these regulations, unless the context otherwise requires:
(a) Act means the Competition Act, 2002 (12 of 2003) as amended from time to time;
(b) Combination means and includes combination as described in section 5 of the Act and any reference to combination in these regulations shall mean a proposed combination or the combined entity, if the combination has come into effect, as the case may be;
(c) Commission means the Competition Commission of India established under subsection (1) of section 7 of the Act;
(d) Director General means the Director General appointed under sub-section (1) of section 16 of the Act and includes any Additional, Joint, Deputy or Assistant Directors General appointed under the said section;
In a situation not provided for in these regulations or the Competition Commission of India (General) Regulations, 2009, the Commission may determine the procedure, in specific matters, if so required.
In view of the duty cast upon the Commission under section 18 and powers conferred under section 36 of the Act, and having regard to the mandate given to the Commission to, inter-alia, regulate combinations which have caused or are likely to cause appreciable adverse effect on competition in terms of sub-section (1) of section 6 of the Act, it is clarified that since the categories of combinations mentioned in Schedule I are ordinarily not likely to cause an appreciable adverse effect on competition in India, notice under sub-section(2) of section 6 of the Act need not normally be filed.
(1) Any enterprise which proposes to enter into a combination shall give notice of such combination to the Commission in accordance with sub-section (2) of section 6 of the Act and these regulations.
(2) The notice under sub-section(2) of section 6 of the Act, shall ordinarily be filed in Form I as specified in schedule II of these regulations, duly filled in, verified and accompanied by evidence of payment of requisite fee by the parties to the combination including the instances where
(a) none of the parties to the combination are engaged in the production, supply, distribution storage , sale or trade of similar or identical or substitutable goods or provision of similar or identical or substitutable services, or the parties to combination are not engaged at different stages or levels of the production chain in different markets, in r
(1) The details of acquisition by a public financial institution, foreign institutional investor, bank or venture capital fund, referred to in sub-section(5) of section 6 of the Act, shall be filed without any fee in Form III, as specified in Schedule II to these regulations.
(2) The duly filled in and verified Form III, along with two copies and electronic version thereof, shall be delivered to the Commission at the address published on its official website.
Where a notice filed in Form I or Form II under sub-regulations (2) or (3) of regulation 5 of these regulations is received in the Commission beyond the time limit mentioned in sub-section (2) of section 6 of the Act, the Commission may, without prejudice to other provisions including that of section 43A of the Act, admit such notice.
(1) Where the parties to a combination fail to file notice under sub-section (2) of section 6 of the Act, the Commission may under sub-section (1) of section 20 of the Act, upon its own knowledge or information relating to such combination, inquire into whether such a combination has caused or is likely to cause an appreciable adverse effect on competition within India.
(2) Where the Commission decides to commence an inquiry, referred to in sub-regulation (1), the Commission, without prejudice to any penalty which may be imposed or any prosecution which may be initiated under this Act, shall direct the parties to the combination to file notice in Form II, as specified in Schedule II to these regulations, duly filled in, verified and accompanied by evidence of requisite fee.
(3) The notice, referred to in sub-regulation (2), shall be file
(1) In case of an acquisition or acquiring of control of enterprise(s), the acquirer shall file the notice in Form I or Form II, as the case may be, which shall be duly signed by the person(s) as specified under regulation 11 of the Competition Commission of India (General) Regulations, 2009.
(2) In case the enterprise is being acquired without its consent, the acquirer shall furnish such information as is available to him, in Form I or Form II, as the case may be, relating to the enterprise being acquired:
Provided that all information required to be filed, relating to the enterprise being acquired shall be filed with the Commission within fifteen days from filing of the notice and in case the acquirer is not in a position to furnish all the required information in Form I or Form II, as the case may be, relating to the enterprise being
(1) The person or enterprise filing notice under regulation 5 or regulation 8 of these regulations shall pay the fee as specified under regulation 11 of these regulations.
(2) Where the notice is filed jointly, the fee shall be payable jointly or severally.
The amount of fee payable alongwith the notice in Form I or Form II, as the case may be, shall be as under:
(a) where the notice is filed in Form I, the fee payable shall be rupees fifty thousands (Rs. 50,000) only;
(b) where the notice is filed in Form II, the fee payable shall be rupees ten lakhs (Rs. 1,000,000) only.
The fee may be paid either by tendering demand draft or pay order or bankers cheque, payable in favour of the Competition Commission of India (Competition Fund), New Delhi or through Electronic Clearance Service (ECS) by direct remittance to the Competition Commission of India (Competition Fund), Account No. 1988002100187687 with Punjab National Bank, Bhikaji Cama Place, New Delhi110066.
(1) The duly filled in and verified notice under regulation 5 or regulation 8 of these regulations along with two copies and an electronic version thereof shall be delivered to the Commission at the address published on its official website.
(2) All responses or other documents required to be filed before the Commission consequent to the filing of the notice under regulation 5 or regulation 8 of the these regulations shall also be filed as per the procedure contained in sub-regulation (1).
Provided that for the purposes of this regulation, the Secretary may through public announcement inform the procedure for electronic filing, increase or decrease the number of copies or vary the format in which the electronic version is to be filed
(1) The notice filed under regulation 5 or regulation 8 of these regulations shall not be valid and complete unless it is in conformity with these regulations.
(2) The Secretary shall issue an acknowledgement of the receipt of notice.
(3) Where the information or document(s) contained in the notice under regulation 5 or regulation 8 of these regulations has any defect(s) or is incomplete in any respect, the parties to the combination shall be asked to remove such defect(s) or furnish the required information including document(s).
(4) The Secretary shall place the proof of service of communication as referred to in sub-regulation
(3) to the parties to the combination on record.
(5) The parties shall compl
Subject to the provisions of these regulations, the time period under sub-section (11) of section 31 of the Act shall commence from the date of receipt of notice, in writing, filed under regulation 5 of these regulations.
(1) The parties to the combination having filed a notice under regulation 5 or regulation 8 of these regulations, shall inform the Commission of any change in the information provided in the notice to the Commission at the earliest during the continuation of the proceedings under the Act.
(2) The Secretary shall place the information relating to any change in the notice before the Commission not later than the third working day of its receipt in the Commission.
(3) The Commission shall assess the significance of the information relating to that change and, if satisfied, take on record the information received.
(4) Where the Commission is of the view that the change is likely to affect the factors for the determination of the appreciable adverse effect on competition significantly, it may, afte
The proceedings under this Act relating to the combinations shall be terminated upon,
(a) receiving an intimation from the person(s) or enterprise(s) who filed the notice to the effect that the proposed combination will not take effect;
(b) passing of an order by the Commission under section 31 of the Act.
Save as otherwise provided in the Act or in these regulations, the service of any notice excluding the notice under sub-section (2) of section 6 of the Act, or intimation to any person or enterprise under these regulations shall be effected in the manner as provided in regulation 22 of the Competition Commission of India (General) Regulations, 2009 or by electronic transmission as considered appropriate by the Commission.
(1) The Commission shall form its prima facie opinion under sub-section (1) of section 29 of the Act, on the notice filed in Form I or Form II, as the case may be, as to whether the combination is likely to cause or has caused an appreciable adverse effect on competition within the relevant market in India, within thirty days of receipt of the said notice.
(2) For the purpose of forming its prima facie opinion under sub-section (1) of section 29 of the Act, the Commission may, if considered necessary, require the parties to the combination to file additional information or accept modification, if offered by the parties to the combination before the Commission has formed prima facie opinion under sub-regulation (1), as deemed fit by it:
Provided that the time taken by the parties to the combination, in furnishing the additional informatio
(1) After receipt of the response to the notice to show cause from the parties to the combination under sub-section (1) of section 29 of the Act, the Commission may decide to call for a report from the Director General under sub-section (1A) of section 29 of the Act within the time as specified by the Commission.
(2) The Secretary shall convey the direction of the Commission under sub-regulation (1) to the Director General, along with copy of the notice filed by the parties to the combination with all other documents, materials, affidavits, statements, which have been filed or are otherwise available with the said notice, the notice to show cause to the parties to the combination and response of the parties to the same.
(1) The Director General shall include in his report the basis of having reached the conclusions therein together with all evidences or documents or statements collected during the investigation and analysis thereof;
(2) Two copies of the report of the Director General duly signed on each page by the Director General, or his authorized officer, along with an electronic version in document format, shall be forwarded to the Secretary within the time specified by the Commission:
Provided that the Secretary may increase or decrease the number of copies of the report and may permit electronic transmission of the same.
(1) Where the Commission under sub-section(2) of section 29 of the Act is of the prima facie opinion that the combination has caused or is likely to cause appreciable adverse effect on competition within the relevant market in India, the Secretary shall, within four working days of such decision convey the direction of the Commission to the parties to the combination, to publish the details of the combination within ten working days of the date of such direction:
(2) The details of combination shall be published by the parties in Form IV, as specified in Schedule II to these regulations.
(3) The parties shall submit the details of combination to be published under sub-regulation (2) to the Commission before its publication and the Commission may host the same on its official website
(4) The de
The parties to the combination shall submit copies of publication, referred to in regulation 22 , to the Secretary, not later than the fifteenth day of the direction of the Commission for publication of the details of the combination.
Where the Commission deems it necessary to give an opportunity of being heard to the parties to the combination before deciding to deal with the case in accordance with the provisions contained in section 31 of the Act, the Secretary shall convey its directions to the said parties, to appear before it by giving a notice of such period as directed by the Commission.
(1) Where the Commission is of the opinion that combination has or is likely to have appreciable adverse effect on competition but such adverse effect can be eliminated by suitable modification to such combination, it may propose appropriate modification to the combination to the parties to such combination.
(2) Where the parties to the combination have accepted the modification proposed by the Commission under sub-section (3) of the section 31 of the Act or the Commission agrees with the amendment to the proposed modification by the parties and approves the combination under sub-section (7) of section 31 of the Act or the parties, in terms of the provisions of subsection (8) of section 31 of the Act, accept the modification proposed by the Commission under sub-section (3) of section 31 of the Act, the parties to the combination shall carry out such modification as per the terms an
(1) The modification referred to in regulation 25 of these regulations shall be carried out by the parties to the combination within the period as may be specified by the Commission.
(2) The parties to the combination shall, upon completion of modification, file a compliance report for the actions required for giving effect to the combination before the Secretary within seven days of such completion.
(3) In case the parties to the combination fail to file the compliance report under sub-regulation (2), the Secretary shall place the matter of such non-compliance before the Commission for appropriate directions.
(1) Where the Commission is of the opinion that the modification proposed by it and accepted by the parties to the combination needs supervision, it may appoint agencies, to oversee the modification, on such terms and conditions as may be decided by the Commission.
(2) The agencies appointed under sub-regulation (1) shall be independent of the parties to the combination having no conflicts of interest. Such independent agencies referred to in this regulation may include an accounting firm, management consultancy, law firm, any other professional organization, or part thereof, or independent practitioners of repute.
(3) The agencies appointed under sub-regulation (1) shall carry out the responsibilities as specified by the Commission from time to time.
(4) The agencies appointed under sub-regul
(1) Where the Commission is of the opinion that the combination has, or is likely to have, an appreciable adverse effect on competition in the relevant market in India, it shall pass an order under sub-section (2) of section 31 of the Act that the combination shall not take effect.
(2) Where the Commission is of the opinion that the combination does not or is not likely to have an appreciable adverse effect on competition, it shall pass an order under sub-section (1) of section 31 of the Act, approving the combination.
(3) Where the Commission approves the combination with modification, the order of the Commission approving the combination shall specify the terms, conditions and the time-frame for all the actions required for giving effect to the combination.
(4) Where the parties to the combi
Subject to the provisions contained in section 53B of the Act, the Central Government or the State Government or a local authority or enterprise or any person, who is party to proceedings on matters relating to a combination and is aggrieved by any direction, decision or order referred to in clause (a) of section 53A of the Act may prefer an appeal to the Competition Appellate Tribunal.
(1) Any request for confidentiality of information or documents submitted during the investigation shall be duly considered having due regard to the procedure laid down in the Competition Commission of India (General) Regulations, 2009, as amended from time to time.
(2) The request under sub-regulation (1) may, inter-alia, clearly state the reasons, justification and implications for the business of the parties to the combination so that all relevant factors may be considered by the Commission while taking decision in the matter.
The notice referred to in sub-section (2) of section 6 of the Act would be applicable as follows:
(a) for mergers or amalgamations referred to in clause (c) of section 5 of the Act, notice to be filed only in regard to proposals approved by the board of directors on or after the 1st day of June , 2011; and
(b) for acquisitions referred to in clause (a) of section 5 of the Act or acquiring of control referred to in clause (b) of section 5 of the Act, notice need to be filed only, where binding document(s) is executed, on or after the 1st day of June, 2011
Explanation-Approval of board of directors under clause (a) of this regulation refers to the final decision of the board of directors.
The provisions of these regulations shall have effect in all matters relating to combinations notwithstanding anything inconsistent therewith contained in any other regulations framed under the Act.
Having regard to the provisions of the Act, the Commission may, from time to time, in discharge of its duties, issue general or sector specific directions, guidelines, clarifications or circulars for regulation of combinations.
Where the Commission deems fit, it may seek opinion of any other agency or statutory authority in relation to a combination.
In the matter of implementation of the provisions of these regulations, if any doubt or difficulty arises, the same shall be placed before the Commission and the decision of the Commission thereon shall be final and binding.
[See regulation 4]
(1) An acquisition of shares or voting rights, referred to in sub-clause (i) or sub-clause (ii) of clause
(a) of section 5 of the Act, solely as an investment or in the ordinary course of business in so far as the total shares or voting rights held by the acquirer directly or indirectly, do not exceed fifteen percent (15%) of the total shares or voting rights of the company, of which shares or voting rights are being acquired, directly or indirectly or in accordance with the execution of any document including a share holders agreement or articles of association, not leading to acquisition of control of the enterprise whose shares or voting rights are being acquired.
(2) An acquisition of shares or voting rights, referred to in sub-clause (i) or sub-clause (ii) of clause
FORM I
{See regulation 5 and regulation 8}
Registration No: (to be assigned by the Competition Commission of India)
Part I
(To be filled in by everyone)
1. Information about each of the parties to the combination:
(a) Legal Name of Party(s) to the combination:
(b) Registration number (if applicable):
(c) Name of the person signing on behalf of the party to the combination (enclose documentary proof of eligibility for signing the notice)
(d) rincipal business address:
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