4 December, 2017
Delhi High Court dismisses petition against CCI
On September 22, 2017, the Delhi High Court (‘DHC’) considered the scope of CCI’s jurisdiction in a case filed by the Uttarakhand Agricultural Produce Marketing Board (‘ Petitioner’) challenging CCI’s jurisdiction to initiate an investigation against it. CCI had issued a prima facie order in Case No. 2 of 2016 declaring that the actions of the Petitioner restricted the production of India Made Foreign Liquor (‘IMFL’) and imposed unfair stipulations in the agreements entered into with manufacturers of IMFL resulting in a denial of market access under Section 4(2)(c) and imposition of unfair terms and conditions under Section (4)(2)(b)(i) of the Act respectively.
The Petitioner is a body corporate, entrusted with the functioning of developing and regulating ‘Mandies’ in the State of Uttarakhand and has been appointed as the exclusive wholesale licensee of foreign liquor including IMFL in Uttarakhand by the Uttarakhand government. The Petitioner argued that CCI ’s order is without jurisdiction as the Petitioner only administers the liquor policy in Uttrakhand and is not an “enterprise” as defined under the Act. It was also contended that the subject matter of the complaint before CCI had already been adjudicated by the Uttrakhand High Court because of which CCI proceedings in this matter are barred by principles of res judicata.
DHC considered the definition of ‘enterprise’ under Section 2(h) of the Act and noted that it would include a ‘department of the Government’, ‘which is engaged in any activity relating to production, storage, supply, distribution, acquisition or control of articles or goods’. It also observed that the distribution of liquor by the Petitioner does not fall under the categories of government activity excluded from the Act’s ambit. On this basis, DHC held that the Petitioner was an ‘enterprise’ under the Act and CCI proceedings are not barred on the grounds of res judicata since: (i) the informant in CCI proceedings is different from the parties that were before the Uttarakhand High Court proceedings; and (ii) the scope of CCI proceedings materially differ from
those before the Uttarakhand High Court and the findings of each do not contradict each other.
Merely because multiple remedies arise from the same set of facts does not preclude recourse to more than one proceeding.
In view of the above, DHC dismissed the petition and held that no interference in CCI ’s initiation order against the Petitioner was warranted.
Bombay High Court Quashes CCI Order against Vodafone
On April 21, 2017, CCI had issued a prima facie order under Section 26(1) of the Act (‘CCI Order ’) directing an investigation against Vodafone India Limited and other service providers15 (‘Petitioners ’).
The information filed before CCI alleged that the Petitioners had delayed and denied adequate Points of Interconnection (‘POIs ’) to Reliance Jio Infocomm Limited (‘RJIL ’), resulting in calls failures between RJIL and other networks. It was also alleged that such denial amounted to cartelization with a view to prevent RJIL ’s entry in the telecom market. The Petitioners challenged the CCI Order by filing a petition in the Bombay High Court (‘BHC ’).
Importantly, BHC noted that the CCI Order could not be treated purely as an administrative order. Noting the: (i) lack of alternate appeal remedies following an initiation order by CCI under Section 26(1) of the Act; (ii) the extensive information and documents considered at the time of passing the CCI Order; and (iii) the fact that the CCI Order decides several issues and elements, resulting in a Director General (‘DG ’) investigation with clear adverse consequences, BHC held that the CCI Order cannot be treated as “just an administrative order” and/or “not adjudicatory in nature.”
BHC observed that the complaint before CCI alleged various contractual breaches in respect of agreements entered into as required under the Telecom Regulatory Authority of India Act, 1997 (‘TRAI Act ’). A resolution of these allegations required an interpretation of these agreement clauses, and as held by BHC , the Act could not be used to interpret the contract conditions/ policies of the telecom sector, arising out of the Indian Telegraph Act, 1885 and the TRAI Act.
Accordingly, it was held that CCI ought to have referred the matter to the relevant authority, i.e. TRAI under Section 21A of the Act before initiating proceedings. BHC further observed that since the reasons for congestion and call failures were still pending adjudication by the High Court/ authorities, CCI erred in passing its prima facie order, although stating that CCI may initiate an inquiry at a later stage if a case is made out, and once the position of law and terms and conditions between the parties are settled by the telecommunication authority and the High Court. On this basis, BHC held that the CCI Order was unjust and without jurisdiction and it was set aside.
NCLAT dismisses Review Application filed by Pooja Investments and Financial Management
On September 11, 2017, the National Company Law Appellate Tribunal (‘NCLAT ’) dismissed a review application against an order which was passed by the Competition Appellate Tribunal (‘COMPAT ’). NCLAT noted that the appeal had been preferred after a delay of seven and a half years, much beyond the period of limitation, without providing any reasons for delay apart from the counsel not appearing for the matter. It was also alleged in the review petition that COMPAT had no jurisdiction over the petition. This was however struck down as an invalid ground for a review case. For these reasons, and absent any new material or apparent error on record, NCLAT dismissed the review application.
NCLAT disposes Appeal by Potash Corporation of Saskatchewan Inc. and Agrium Inc.
On October 13, 2017, NCLAT disposed of an appeal filed by Potash Corporation of Saskatchewan Inc. (‘Potash Corp ’) and Agrium Inc. (together, ‘Parties ’) challenging an order of CCI under Section 31 of the Act directing Parties to divest certain assets in order to obtain a clearance order for the proposed merger. During the appeal, NCLAT was informed that the Parties were negotiating with CCI in respect of certain terms and conditions in relation to the order of CCI and NLCAT permitted the Parties to engage with CCI to further modify the modification proposal.
The Parties engaged with CCI and further to discussions, submitted a complete copy of the proposed modification incorporating certain changes in the mode, manner and conditions of implementation. CCI agreed to the modified terms and the Parties filed an affidavit enclosing the modified terms and conditions of the proposed merger before the NCLAT . The NCLAT held no further finding was required as both, CCI and the Parties, were in agreement as to the proposed modifications and directed CCI to treat the modified proposal as approved by it as the final order and dismissed the appeal.
Since its constitution, this was the first time that NCLAT considered an appeal from a modification order issued by CCI . Potash Corp. was represented by AZB & Partners before the NCLAT.
CCI Orders Investigation against Haryana Urban Development Authority
On October 31, 2017, CCI instructed the DG under Section 26(1) of the Act to carry out a detailed investigation against the Haryana Urban Development Aurhority (‘HUDA ’). The complaint, filed by Gurgaon Institute Welfare Association, alleged HUDA was in a dominant position on account of it being a statutory authority and an exclusive supplier of institutional plots situated in the urban estates in the state of Haryana. It was alleged that HUDA had abused its dominant position by: (i) restricting the absolute right to transfer the title of plots allotted contrary to HUDA regulations; and (ii) preventing construction on the allotted land without prior permission. In its submissions before CCI , HUDA challenged the jurisdiction of CCI arguing that its actions are governed by the HUDA regulations and does not therefore fall within the ambit of the Act. CCI held this argument to be devoid of any merit and referred to Section 60 and Section 62 of the Act which required the provisions of the Act to be read in addition to, and not in derogation of any law.
CCI found HUDA to be dominant in the relevant market of the ‘market for development and sale of institutional plots in the State of Haryana’, on account of it being the only supplier of institutional plots in urban areas; consumers not having any other options to buy similar plots in urban areas of Gurgaon and its statutory power to acquire lands for development in Haryana.
CCI also noted that the requirement to seek prior permission to transfer the title of a plot, including for plots where sale consideration was fully paid, appeared restrictive. HUDA , CCI noted, was also unable to explain the inconsistency between the standard format provided under the HUDA regulations (that permitted such transfers) and the stipulation in its conveyance deed (that disallowed it). CCI also rejected HUDA ’s defence that consumers were in the know of such conditions at the time of purchase. It held that knowledge and acceptance of abusive terms or conditions by the other party, who may not have possessed sufficient bargaining power vis-àvis a dominant player, cannot be used as a defence.
On analyzing relevant submissions, CCI found that a prima facie case of abuse of dominant position within the meaning of Section 4(2)(a)(i) exists against HUDA and referred the matter to the DG for investigation under Section 26(1) of the Act.
CCI Dismisses case against Maharashtra Industrial Development Corporation
On October 9, 2017, CCI dismissed a complaint filed by Maharashtra Electrical Engineers Association (‘MEEA ’) against Maharashtra Industrial Development Corporation (‘MIDC ’) alleging arbitrary award of tenders. MEAA alleged that MIDC , which is a governmental enterprise, granted a tender arbitrarily to Royal Power Trunkey Implements Private Ltd. (‘Royal Power ’) even though it did not hold a valid license required to perform its obligations under the tender.
Further, it was alleged that MIDC had on multiple instances issued tenders to Royal Power, without considering the eligibility criteria and tender conditions, which unduly benefitted Royal Power. MEAA alleged violation of the provisions of Sections 3 and 4 of the Act and also sought interim relief from CCI.
CCI noted that the information filed by MEAA failed to disclose any material that would attract Sections 3 or 4 of the Act. There was no agreement that caused or was likely to cause an AAEC in India under the provisions of Section 3 of the Act. Similarly, the information did not make a case of abuse of dominant position by MIDC under Section 4 of the Act. Absent a competition issue under the provisions of the Act, CCI dismissed the complaint under Section 26(2) of the Act.
CCI Dismisses case against National Thermal Power Corporation
On October 12, 2017, CCI dismissed a complaint filed by Tata Power Delhi Distribution Limited (‘TPDDL ’) against National Thermal Power Corporation (‘NTPC ’) alleging violation of Section 4 the Act. TPDDL alleged that NTPC was dominant in the market of ‘supply of electricity by generating companies’ (‘GENCOs ’) that enabled it to: (i) impose unfair conditions through power purchasing agreements (‘PPAs ’); (ii) omit an exit clause to TPDDL ; (iii) inordinately delay the commercial operation of its plants for which PPA s have already been signed; and (iv) use low grade of coal for generating electricity and calculating tariff based on a higher grade of coal resulting in an increase in retail tariff for the end consumer. TPDDL also alleged that these PPAs have an AAEC in India as they create entry barriers for new players and violate the provisions of Section 3(4) read with Section 3(1) of the Act.
CCI noted that although TPDDL is bound by PPA s, they have an option of approaching the Government for power reallocation, which effectively provided an option to terminate the PPA .
It was further observed that the PPA s were not imposed by the NTPC , but rather entered in accordance with the directions of the Delhi Electricity Regulatory Commission (‘DERC ’). In any event, not only was TPPDL fully aware of the terms of the PPA , including the long term stipulation, at the time of entering into the agreement, it had the option to negotiate the terms or even refrain from entering into them. In any event, CCI observed that the long term stipulation that bound TPDDL and other procurers in long term PPA s was justified since GENCO s (like NTPC ) invest substantially in generating stations on the basis of long term commitments made by procurers and the tariff payable by procurers is the only way to service the capital cost.
An exit clause that allows procurers to terminate the PPA would jeopardize investments made by GENCO s. CCI also considered the harm to end-consumers on account of NTPC ’s conduct, in the form of increased electricity tariffs. CCI however held that since such tariffs are determined by the Centre/State Electricity Regulatory Commission, there remained no issue to be addressed by CCI . Accordingly, finding no prima facie case of contravention, CCI dismissed the case.
CCI Imposes Penalty against All Kerala Chemists and Druggists Association
On October 31, 2017, CCI imposed a penalty on All Kerala Chemists and Druggists Association (‘AKCDA ’) under Section 27 of the Act. In this case, four stockists (wholesalers) in the state of Kerala alleged that: (i) AKCDA and its district level associations demanded a No Objection Certificate (‘NOC ’) from it prior to the appointment of any stockist; (ii) AKCDA was issuing NOC s in the form congratulatory/appreciation letters to avoid sanctions under the Act; and (iii) that this practice was in contravention of Section 3 of the Act. It was further alleged that the requirement of a NOC was being implemented despite CCI having issued cease and desist orders against the practice in other similar cases. On the basis of the allegations, an investigation was directed by CCI to the DG.
It was noted that AKCDA had continued the requirement of a NOC despite a CCI press release issued to all chemists and druggists associations stating that the requirement of a NOC is an anti-competitive practice.
Further, on an analysis of the DG investigation report, CCI observed that the AKCDA ’s practice of mandating NOC prior to the appointment of stockists resulted in limiting and controlling the supply of drugs in the market.
Accordingly, CCI held that AKCDA contravened Section 3(3)(b) read with Section 3(1) of the Act and directed it to cease and desist from engaging in any practice found to be anti-competitive. In addition, CCI imposed a monetary penalty at the rate of 10% on AKCDA ’s average income of the last three years. CCI also found the office bearers of AKCDA , individuals responsible for the anti-competitive conduct,
liable under Section 48 of the Act and imposed a penalty at the same rate as AKCDA on their personal incomes.
CCI Directs All India Film Employee Confederation, Federation of Western India Cine Employees and others to Cease and Desist from indulging in Anti-competitive Practices
On September, 10, 2017, CCI passed an order directing the All India Film Employee Confederation (‘AIFEC ’), Federation of Western India Cine Employees (‘FWICE ’) and its affiliated associations16 (together, ‘Employee Association ’) as well as certain producer associations, comprising of the Indian Motion Picture Producers Association, the Film and Television Producers Guild of India and the Indian Film and Television Producers Council (together, ‘Producer Association ’) (together, the ‘OPs ’) to cease and desist from indulging in anti-competitive practices under Section3 of the Act. The complainant, a film producer, alleged that the FWICE and the Producer Association: (i) imposed a Memorandum of Understanding (‘MoU ’) on producers, which prevented producers from hiring any artist who was not a member of the Employee Association; and (ii) boycotted producers that appointed artists who are not members of the Employee Association.
It was also alleged that the Employee Association passed certain restrictive resolutions which inter alia set out certain ratios in which artists were to be hired by the producer. For e.g., on the basis of region, producers would have to hire 70% of artists from the region where the film was shot and 30% per the producer’s discretion (‘Restrictive Resolutions ’). These Restrictive Resolutions had the effect of: (i) forcing producers to hire artists in a particular ratio regardless of skill; (ii) allotted services on the basis of a geographical area; and (iii) limited the provision of services available in the Western market.
On analyzing the terms in the MoU, CCI observed that Clauses 6 and 18 of the MoU (‘Restrictive Clauses ’) were anti-competitive, in that, the OP s used these clauses to issue non-cooperative directives, prohibited hiring specialized non-member artists, conduct vigilance checks, stalling shoots for hiring non-members and levying penalties. Each of these practices limited the supply and distribution of films as they restricted producers to employ only those services which were permitted under the MoU. In view of the above, CCI held that Restrictive Clauses and Restrictive Resolutions violated Section 3(3)(b) and 3(3)(c) of the Act.
Accordingly, CCI issued an order under Section 27 of the Act directing OP s to cease and desist from engaging in such anti-competitive conduct and repealing the Restrictive Clauses. CCI did not however impose any monetary penalty on account of the following mitigating factors: (i) the MoU was in practice since 1966 and was a mechanism to resolve disputes between producers and craftsmen; (ii) only two clauses in the MoU were found to be anti-competitive and (iii) some of the OP s are associations of daily wage earners.
CCI finds Grasim Industries Limited Guilty of Bid-rigging in Tenders
On October 5, 2017, CCI penalised Grasim Industries Ltd. (‘GIL ’), Aditya Birla Chemicals (India) Ltd. (‘ABCIL ’) and Gujarat Alkalies and Chemicals Ltd. (‘GACL ’) for contravening Section 3(3) (d) read with Section 3(1) of the Act (together, ‘Bidding Parties ’) for engaging in bid-rigging. A complaint was filed by the Delhi Jal Board (‘DJB ’) alleging that the Bidding Parties had engaged in collusion in its tenders floated for the procurement of Poly Aluminium Chloride (‘PAC ’).
It was argued that as both ABCIL and GIL had a common parent company, they belonged to the same group and thus constituted a single economic entity (‘SEE ’). As a result, there could be no collusion between sister concerns. CCI disagreed with the contentions of GIL and ABCIL . It observed that both companies’ submitted separate bids in response to tenders floated by the DJB and at every stage of the bidding process, ABCIL and GIL , were treated as opponents/ competitors, with each of their bids being considered individually.
Accordingly, CCI found held that ABCIL and GIL must be treated as competitors regardless of the fact that they had common shareholders, employees, etc. Further, on an analysis of the DG report, CCI found no explanation for the similarity in bid prices, despite alleged differences in transportation and production costs among the Bidding Parties. CCI also noted that this difference in cost of production was contradictory to the Bidding Parties’ argument that PAC is a homogenous product and that prices would fall in a similar range.
On an analysis of the bid patterns, CCI noted that the Bidding Parties followed a pattern where GACL would be the lowest bidder for one year, but would quote higher rates/prices in the next five tenders, indicating a deliberate lack of competition. Moreover, despite GACL having adequate capacity to meet DJB ’s PAC requirement, it failed to quote a lower rate and instead chose to submit high. The reasons given by GACL for its (higher) bids, namely high transport costs and insufficient commercial interest in making supplies to the DJB , were rejected by CCI as not being compelling justifications.
These factors along with an observation of price parallelism led CCI to conclude that the prices quoted by the Bidding Parties’ reflected concerted action as well as meeting of minds.
On this basis, CCI found the Bidding Parties to be in contravention of Section 3(3)(d) read with Section 3(1) of the Act and imposed a monetary penalty of Rs. 6.3 crores (approx. US $ 975,000) on ABCIL , GIL and GACL , collectively.
CCI Approves Acquisition of Shares of SBI and GE Capital by SBI and Rover
On September 28, 2017, CCI approved the acquisition of SBI Cards and Payment Services Private Limited (‘ SBI Payments’) and GE Capital Business Process Management Services Private Limited (‘ GCB’) (collectively, ‘Target Companies’) by State Bank of India (‘ SBI’) and CA Rover Holdings (‘Rover’) (collectively, ‘Acquirers’) from GE Capital Mauritius Overseas Investment Limited (‘ GE Capital’) and GE Real Estate Investments Holdings (‘ GE Real Estate’). The acquisition entitled both SBI and Rover to 76% and 24% in each of SBI Payments and GCB (‘Proposed Transaction’), respectively.
CCI noted the absence of horizontal overlaps between the Acquirers and Target Companies. Rover is an investment holding company owned and controlled by Carlyle Asia Partners (‘Carlyle’) – a publicly traded limited partnership and listed on the NASDAQ stock exchange.
Rover is neither engaged in any business activity in India nor has any investment outside India. It doesn’t hold any shares in the Target Companies or any other enterprise in which the Target Companies also hold shares. None of the companies that are either owned or controlled by Carlyle in India or which have subsidiaries in India are engaged in issuing credit cards in the domestic market (‘Carlyle Companies’). Although Carlyle holds non-controlling stake in South Indian Bank that has collaborated with SBI to launch co-branded credit cards, it is unlikely to result in an AAEC. SBI is a nationalized bank with its headquarters in Mumbai. Apart from its shareholding in the Target Companies, it isn’t engaged in the business of issuing credits cards in India.
In terms of vertical overlaps, CCI observed that SBI Payments entered into an agreement for obtaining tele-calling services from a portfolio company of Carlyle, Allsec Technologies Limited (‘Allsec’). This was however held to be non-problematic since Allsec does not have any direct agreement with any credit card company in India, other than with SBI Payments. It was also noted that there are other industry players engaged in the provision of similar services as Allsec. Accordingly, CCI observed that the Proposed Transaction was not likely to cause an AAEC in India and approved the combination.
CCI Approves the Acquisition of Spectrum of Reliance Communications Limited and Reliance Telecom Limited by Reliance Jio Infocomm Limited
On October 3, 2017, CCI approved the acquisition of 800 MHz frequency band of Reliance Communications Limited (‘ RCOM’) and Reliance Telecom Limited (‘ RTL’) by Reliance Jio Infocomm Limited (‘ RJIO’). RJIO is a wholly owned subsidiary of Reliance Industries Limited and is engaged in provision of telecommunication services in India. RTL is a wholly owned subsidiary of RCOM. RCOM (including RTL), directly and/or through its other subsidiaries, is engaged in the provision of telecommunication services in India. In order to acquire spectrum, RJIO entered into three agreements, Spectrum Trading Agreement with RCOM, Option Agreement with RCOM and Option Agreement with RTL. The subject matter of the Trading Agreement was the right to use spectrum, which was transferred with the approval of the Department of Telecommunication, GOI (‘DoT’).
CCI examined the spectrum holding of different telecom service providers (‘ TSPs’) in all telecom circles relevant for the proposed transaction and held that the spectrum holding of RJIO in 800 MHz band and its overall spectrum holding, post-acquisition, when examined along with the spectrum holding of other TSPs, was not likely to result in an AAEC in any of the markets.
For this reason, CCI approved the acquisition.
CCI Approves the Merger of Vodafone India and Idea Cellular Limited
On October 3, 2017, CCI approved the merger of Vodafone India Limited (‘ VIL’), Vodafone Mobile Services Limited (‘ VMSL’) (collectively referred to as ‘Vodafone’) and Idea Cellular Limited (‘Idea’) (VIL, VMSL and Idea collectively referred to as ‘Parties’). VIL and VMSL provide a range of telecommunications services in India. VIL provides service in the Mumbai circle whereas VMSL provides services in 21 other circles. Idea is a pan-India integrated telecom service provider (‘ TSP’) and provides a range of telecommunication services across all 22 circles in India.
The proposed combination contemplates a merger and amalgamation of telecommunications businesses of VIL, VMSL and Idea by way of a scheme of amalgamation and arrangement under the Companies Act, 2013.
Pursuant to the proposed combination, the shareholders of VIL, the Aditya Birla conglomerate and public shareholders of Idea would respectively hold 45.10%, 26% and 28.90% of the equity share capital of the merged entity, on a fully diluted basis. CCI identified nine product segments for the purpose of competition assessment: (i) Retail Mobile Telephony Services; (ii) Enterprise Services; (iii) Internet Service Provider Services (‘ISP Services ’); (iv) National Long Distance Services (‘NLD Services ’); (v) International Long Distance Services (‘ILD Services ’); (vi) provision of passive infrastructure services through telecom towers; (vii) provision of passive infrastructure services over fibre optic network; (viii) intra circle roaming services (‘ICR Services ’); and (ix) mobile wallet services. As regards the relevant geographic market, CCI noted that services of VIL , VMSL and Idea overlap in 22 telecom circles in India. As regards Retail Mobile Telephony Services, CCI was mindful of the combined market share of the Parties in various circles exceeded 30% in 14 circles. However, on an assessment of the factors enumerated under Section 20(4) of the Act, CCI inter alia noted: (i) a near zero switching cost for subscribers who want to switch their service provider post the proposed combination; (ii) at least five private TSP s and one state owned TSP in all telecom circles in the retail mobile telephony services market; (iii) certain efficiencies resulting from the proposed combination; and (iv) the telecommunication industry witnessing a stage of consolidation.
With respect to Enterprise Services, CCI observed that Idea does not have any significant presence in overall enterprise services segment or any of its sub-segments. With respect to ISP Services, CCI noted that Vodafone and Idea are amongst the smaller players and the combined market share of the Parties is only around 4%. As regards NLD Services, CCI noted that though the combined market share of the Parties would be 23% in India, the merged entity would continue to face significant competitive constraints from other competitors. Further, CCI observed that there are no long term contracts for provision of NLD Services and the maximum lockin period for most of the contracts is 12 months. With respect to ILD Services, CCI noted that though the combined market share of the Parties would be around 18% in India, the merged entity would continue to face significant competitive constraints from other competitors. CCI noted that for the provision of ILD Services there are no long term contracts. As regards provision of passive infrastructure services through telecom towers, CCI noted that both Vodafone and Idea have 42% and 11.15% respectively in Indus Towers, a joint venture inter alia between entities of Bharti Infratel Limited, Vodafone India and Idea. However, prior to the completion of the proposed combination, Vodafone and Idea intend to sell their standalone tower assets on
an individual basis. On this basis, CCI noted that both Parties have insignificant presence with their combined market share being less than 5% in terms of number of standalone towers and/or number of tenancies.
With respect to the provision of passive infrastructure services over fibre optic network, CCI noted that combined market share of the Parties is likely to be around 15%. However, CCI observed that the merged entity will continue to face competitive constraints from other TSP s. With respect to ICR Services, CCI observed that ICR agreements are mutually negotiated between the TSP s. CCI considered the presence of various TSP s and the extent of their operations and noted that all of the major TSP s provide/avail ICR services. As regards mobile wallet services, CCI noted that the Parties do not have a significant presence in the market for mobile wallet services and that the market is characterized by presence of other significant competitors.
In light of the above, CCI observed that the proposed combination unlikely to cause an AAEC in India and approved the combination.
12 See https://gettingthedealthrough.com/area/20/jurisdiction/23/merger-control-2016-united-states/.Also, as this publication explains ‘If a second request is issued in such a transaction, the waiting period is extended for 10 days (instead of the usual 30 days) after the date on which the acquiring person substantially complies with the request. Also, for any tender offer, failure to substantially comply with a second request by the acquired person does not extend the waiting period. Further, in cases involving tender offers or other acquisitions of voting securities from third parties, the waiting period begins when the acquiring person files. All other aspects of the HSR Act are equally applicable to public and non-public transactions.’
13 See Article 7 of the European Commission’s Merger Regulations at http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32004R0139&from=EN. Provision on derogation reads: ‘The Commission may, on request, grant derogation from the obligations imposed in paragraphs 1 or 2. The request to grant derogation must be reasoned. In deciding on the request, the Commission shall take into account inter alia the effects of the suspension on one or more undertakings concerned by the concentration or on a third party and the threat to competition posed by the concentration. Such a derogation may be made subject to conditions and obligations in order to ensure conditions of effective competition. A derogation may be applied for and granted at any time, be it before notification or after the transaction.’
14 See https://iclg.com/practice-areasQ/merger-control/merger-control-2017/france.
15 Cellular Operators Association of India, Bharti Airtel Limited, Bharti Hexacom Limited, Idea Cellular Ltd, Vodafone Mobile Services Limited, Vodafone Group Plc, Telenor (India) Communication, Videocon Telecommunication Private Limited, Aircel Limited
For further information, please contact:
Rahul Rai, AZB & Partners
rahul.rai@azbpartners.com
