TaxTMI 
TaxTMI 
The Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Regulations, 2011
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....lations, 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; (e) "Enterprise" shall mean "enterprise" as defined in clause (h) of section 2 of the Act; (f) "Parties to the combination" means persons or enterprises entering into the combination and shall include the combined entity if the combination has come into effect; (g) "Secretary" means the Secretary appointed under sub-section (1) of section 17 of the Act and includes an officer of the Commission authorized by t....
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.... of services in which another party to the combination is engaged; (b) the parties to the combination are predominantly engaged in exports of goods or services from India and continue to be predominantly engaged in exports of goods or services from India after the combination takes effect: Provided that the market share of the combined entity is less than fifteen percent (15%) in the relevant market in India. Explanation: A party to the combination shall be deemed to be predominantly engaged in export of goods or services from India if at least seventy five percent (75%) of the turnover of the party to the combination is derived from exports out of India (c) an acquisition or acquiring of control over an enterprise is by a liquidator, administrator or receiver appointed through court proceedings or through any scheme approved under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 or under the Sick Industrial Companies (Special Provisions) Act, 1985 or any other modification or re-enactment of the law; (d) an acquisition results from a gift or inheritance; (e) an acquisition....
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....riod provided in sub-section (11) of section 31 of the Act and sub-regulation (1) of regulation 19 of these regulations. (6) If the requisite details are not available for any of the columns in Form I or Form II, the date on which they may be submitted should be clearly indicated against those columns, by the parties to the combination: Provided that the time taken by the parties to the combination to submit the requisite details shall be excluded from the period provided in sub-section (11) of section 31 of the Act and sub-regulation (1) of regulation 19 of these regulations. (7) The reference to the 'board of directors' in clause (a) of sub-section (2) of section 6 of the Act, shall mean and include,- (a) the individual himself or herself including a sole proprietor of a proprietorship firm; (b) the karta in case of a Hindu Undivided Family (HUF); (c) the board of directors in case of a company registered under the Companies Act, 1956; (d) in case of a corporation established by or under any Central, State or Provincial Act or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956) or an associatio....
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.....- (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. 9. (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 Il 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 filed, within 30 days of receipt of communication from the Commission, by the parties to the combination. 9. Obligation to file the notice:- (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) ....
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....- The fee may be paid either by tendering demand draft or pay order or banker's 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 Dehi- 110066". 13. Procedure for filing notice.- (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. 14....
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....iew that the change is likely to affect the factors for the determination of the appreciable adverse effect on competition significantly, it may, after giving an opportunity of being heard and after recording reasons, treat the notice already filed as not valid. (5) Where the Commission has held a notice to be not valid under sub-regulation (4), the Secretary shall convey the decision of the Commission to the parties to the combination within seven days of the decision of the Commission, Provided that no additional fee shall be payable if a notice is filed again by the parties to the combination for the same transaction within a period of thirty days from the date of communication of the decision of the Commission. 17. Termination of proceedings. - 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. 18. Mode of service of notice(s), etc.- Save as otherwise provided in the Act or in these regula....
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....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. 21. Report by the Director General.- (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. 22. Publication of the details of the c....
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.... 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 sub-section (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 and conditions and within the period as may be specified by the Commission and submit an affidavit to that effect. (3) Where the parties accept the modification proposed by the Commission under subsection (3) of section 31 of the Act or the Commission agrees with the amendment submitted by the parties under sub-section (6) of section 31 of the Act, it shall by order, approve the combination. (4) If the parties to the combination fail to accept the modification proposed by the Commission within the time referred to in sub-section (6) of section 31 of the Act or within a further period referred to in sub-section (8) of section 31 of the Act, the combination s....
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....ion that the combination does not or is not likely to have an appreciable adverse effect on competition, it shall pass an order under subsection (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 combination fail to carry out the modification accepted by them within the stipulated time limit, the Commission shall issue appropriate directions. (5) The Secretary shall communicate to the parties to the combination, the decision of the Commission under sub-regulation (1) or (2) or (3) or (4) within seven days of such decision. (6) Having due regard to the provisions contained in sub-section (11) of section 31 of the Act, the Commission shall endeavour to pass an order or issue direction in accordance with sub-section (1) or sub-section (2) or sub-section (7) of section 31 of the Act within one hundred and eighty days of filing of the notice under sub- section (2) of section 6 of the Act. (7) Sub....
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.... sector specific directions, guidelines, clarifications or circulars for regulation of combinations. 34. Cooperation with other agencies or statutory authorities.- Where the Commission deems fit, it may seek opinion of any other agency or statutory authority in relation to a combination. 35. Removal of difficulty.- 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. SCHEDULE I [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 per cent (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 contro....
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....ation: 'Current Assets' shall have the same meaning as attributed to them in schedule VI of the Companies Act, 1956. (10) A combination referred to in section 5 of the Act taking place entirely outside India with insignificant local nexus and effect on markets in India. SCHEPULE II 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) Principal business address: (e) City: Country: Postal/Z....
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....ect or indirect control over another enterprise(s) engaged in production, distribution or trading of a similar or identical or substitutable products or provision of a similar/identical/substitutable services? If yes, provide details. 6.5. State whether any of the parties to the combination is engaged in any activity relating to the production, supply, distribution, storage, sale and service or trade in products or provision of services which is at different stages or levels of production chain in which any other party to the combination is involved. If yes, provide details. 6.6. Provide an estimate indicating the relevant source and basis of estimate, of the total size of the market in terms of value of sales (in rupees) and volume (units) of identical/substitutes/similar products or services produced/distributed/supplied in India. Also provide name and contact details of five largest competitors (along with market shares), customers and suppliers, if available. 6.7. Provide details with regard to sales in value (in rupees) and volume (units) along with an estimate of the market shares of each of the parties to the combination for identical/substitutes/similar products or....
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....ntary proof of eligibility for signing the notice, in terms of regulation 8): Son/Daughter of: Principal Business address: City: Country: Postal/Zip code: Telephone no.: Country code: City/Area code: Mobile no.: Fax no.: Country code: City/Area code: E-mail address: Website address: (in case there are more applicants, use the same format for additional applicants) 5. Provide details (in the format in paragraph 4) of an individual located in India, who is authorized to receive communications on behalf of each of the notifying party(s) regarding this notice and related proceedings. 6. Details about the combination 6.1 Please specify the part, sub-clause and clause of section 5 of the Act under which the combination falls. 6.2 Describe the nature of the combination being notified with the following details: (a) State the exact number of shares or voting rights and percentage of shares or voting rights being acquired, directly or indirectly, by the acquirer including number of shares or voting rights and their percentage held prior to such acquisition. Whether s....
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....gaged in similar or identical or substitutable product(s)/service(s); or (c) in case of merger or amalgamation under sub-section (c) of Section 5 of the Act, all the parties to such merger or amalgamation. 7.5 List of holders of five percent or more of voting rights or shares, directly or indirectly, of the parties to the combination. 7.6 List names of CEO/CFO/directors/partners/trustees/person in charge/persons acting in concert during the last one year. Also provide recent detailed organizational chart of each of the combining parties. 8. Information about the size of the Combination 8.1 How do the parties to the combination meet the criteria for filing notice, in terms of assets /turnover given under section 5 of the Act and the notification thereunder? 8.2 Furnish the following details, as per audited annual accounts of the immediately preceding financial year as well as for the current year, separately, for all the patties to the combination. If annual accounts for the immediate preceding financial year are not audited, furnish the following details as per the last audited annual accounts as well as for the subsequent financial years: Name of enterpr....
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....ed calendar quarters till the date of notice For the financial year immediately preceding the date of notice For the current financial year, the completed calendar quarters till the date of notice In India (Rupees in crore) (as per Audited accounts) Worldwide (US$ in billion) (as per audited accounts) In India (Rupees in crore) (as per unaudited accounts) Worldwide (US$ in billion) (as per unaudited accounts) 9. Ownership and Control 9.1 Furnish a list of all the enterprises belonging to the same group for each of the parties to the combination and list all the enterprise(s) controlling the parties to the combination, directly or indirectly, along with the nature and means of control. 9.2 Whether the party to the combination, either singly or jointly, directly or indirectly control the affairs or management of another entity or group? If yes, please furnish the following: (a) details of enterprise(s) exercising control and enterprise(s) whose affairs are being controlled; (b) form....
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.... how the parties to combination classify and sell their products). 10.2 Are there any regulations/laws/rules/procedures/official press notes/directions/ notifications, etc. which restrict production, supply, distribution of the similar or identical or substitutable products or services of the parties to the combination? (Submit documents sufficient to demonstrate such restraints). 10.3 Are the similar or identical or substitutable products or services subject to local specifications prescribed by government/departments/authorities? If yes, provide details. (Submit documents and material sufficient to describe any specifications with which the parties to combination must comply). 10.4 Are there any licensing/registration requirements to set up facilities for production/supply of the similar or identical or substitutable products or services? Does their production/supply require any special technical knowledge that is not readily available? 10.5 Are there any Government procurement policies which offer special dispensation to the parties to combination or their competitors? (Attach sufficient documents/material). 10.6 How important/significant are "distribution facilit....
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....timate) of the total size of the market in terms of value of sales (in rupees) and volume (units) of identical/substitutes/similar products or services produced/distributed/supplied in India. Also provide name and contact details of five largest competitors (along with market shares), customers and suppliers. 11.2 Provide details with regard to sales in value (in rupees) and volume (units) along with an estimate of the market shares of each of the parties to the combination for identical/substitutes/similar products or services produced/distributed/supplied in India. (In case of a group same information should be given for all parties of the group). 11.3 Furnish a list of your main competitors, in your opinion, in the relevant market, with reasons and analysis. 11.4 An estimate of the market share in value (and where appropriate, in volume), of all the competitors (including importers) having at least five percent of the relevant market under consideration (in your opinion). 11.5 Describe the state of competition in the relevant market, supported by market studies, forecast, surveys etc, (if any) and including but not limited to the following: (a) relative stre....
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.... separately for each combining party; (e) provide details of IPRs that have been developed and registered by the parties to the combination in the last five years? With reference to the relevant market(s), provide details of IPRs that are held by each of the parties to the combination; (f) the importance of economies of scale in the production or distribution of products and services in the relevant market; and (g) access to sources of supply, such as availability of raw materials and necessary infrastructure. 11.11 Provide details of imports (total value, volume and sources) and its proportion to the total size of the relevant market for the relevant products and services for the last three years. Also, provide details of potential imports in the next one or two years. Also provide the difference in unit selling price, if any, between the imported and domestic price of similar or identical or substitutable products or services in the relevant market. 11.12 Provide details of exports (total value, volume and sources) and its proportion to the total size of the relevant market for the relevant products and services for the last three years? Provide t....
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....arket radically affected the market conditions recently with new technology or business model or by rapid use of available capacity or by any other means? If so, give details supported by analysis. 12. Documents of compliance and filing in other jurisdictions 12.1 Whether any order has been passed on a competition issue by any Competition Authority/Court/Tribunal/Government/Regulatory Authority in the last five years in respect of the parties to combination? If yes, provide brief details of said order, indicating the issue and the direction of the authority. 12.2 Whether any bankruptcy/winding-up application/proceedings involving any of the parties to the combination have been filed with the relevant authorities in the last five years? If yes, provide details. 12.3 Furnish details of any application/notification/intimation/information relating to the proposed combination filed in a High Court/Company Law Board/Securities and Exchange Board of India or any other authority established under any law in India along with the status thereof and certified copies of the decision in the matter, if any. 12.4 Whether this combination is subject to filing requirements in jurisdi....
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....sion in accordance with the provisions of the Competition Act, 2002 and the rules and regulations made thereunder. It is verified that the contents of this form, together with all appendices and attachments thereto, are true, correct and complete to the best of my knowledge and belief and nothing material has been concealed therefrom. However, where specific data/information is not available due to the absence of authentic source, reasonable estimates have been made, which are to the best of my knowledge true, correct and complete and in accordance with the provisions of the Competition Act, 2002 and the rules and regulations made thereunder. First applicant Name Son/Daughter of Title Signature Date place (In case there are more than one applicants use the same format). IMPORTANT: ALL COMBINING PARTIES MUST VERIFY THE CONTENTS BY SIGNING ON EACH PAGE OF FORM AND ON THIS PAGE Subscribed and sworn before me at the, City: State: Country: Date: Signature: My Commission expires on: (Notary Public) [SEAL] FORM III [See regulation 6] FORM FOR FILING OF DETAILS OF ACQUISITION UNDER SUB-SECTION (5) OF SECTION 6 OF THE COMP....
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....upply, distribution, storage, sales or trade of similar or identical or substitutable "goods", or provision of "services" and if so, the details thereof. 9. Whether the acquisition of control, shares (including share subscription or financing facility), voting rights or assets that the party filing details has taken, meets the threshold limits as provided in section 5 (a) or (b) of the Act. If yes, describe how either the parties filing details of such acquisition or the group to which the enterprise whose shares, assets, voting rights or control is being acquired shall belong pursuant to such acquisition, meet the thresholds provided under the Act or by way of a notification provided by the Central Government from time to time, based on the audited annual accounts of the financial year immediately preceding the financial year in which the acquisition has taken place. If the annual accounts for the immediate preceding financial year are not audited, furnish the details as per the last audited annual accounts as well as for the annual accounts of the each subsequent year, duly certified by the Managing Director/ Chief Executive Officer/ Chief Financial Officer as per the authoris....