10 June 2021
The Competition Commission of India (CCI) adapted nimbly to the challenges of 2020 and focused on digital payment platforms and cartel investigations; a few merger cases threw up interesting results as well. The much-anticipated guidance notes for the amended Form I notice were also a key highlight in 2020.
The COVID -19 Pandemic and the CCI’s response
The CCI moved quickly towards allowing electronic filings, and conducting hearings and other meetings through video conference, after consultations with the Bar Counsel of India.
On April 19, 2021, the CCI issued an advisory to businesses on the disruption in supply chains for critical healthcare products and other essential commodities / services. The advisory stated that joint ventures that increase efficiencies will not be penalised by the CCI if such arrangements are necessary and proportionate to address concerns arising from COVID-19. This advisory is in line with the statutory exemption under Section 3 of the Competition Act, 2002 (as amended) (Act), which limits the applicability of the provisions governing anticompetitive horizontal agreements (including cartels) to efficiency enhancing joint ventures.
The CCI facilitated easier notification formalities such as allowing parties to file confidentiality affidavits on a later date if the notifying parties had trouble notarising or apostilling documents.
Merger notifications – clarifications issued by the CCI
Notes to Form I
In March 2020, the CCI issued the updated guidance (Notes to Form I) for drafting the short form merger notification (Form I). These updates followed the amendments to the CCI’s Combination Regulations in August 2019, which introduced significant changes to the Form I. Noteworthy clarifications introduced by the updated Notes to Form I include:
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Parties need to provide information in respect of only those affiliates / entities in which they hold shares and / or have control (including their group entities) if, (a) they have direct or indirect shareholding of 10% or more – previously this threshold was set between 5% and 10%; or (b) have a right or ability to exercise any right (including any advantage of commercial nature with any of the party or its affiliates) that is not available to an ordinary shareholder; or (c) have a right or ability to nominate a director or observer in another enterprise(s).
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Parties need to provide market data of over three years for defined relevant markets only where they have a combined market share of 10% or more for any horizontal, vertical or complementary business activities.
While the scope of these disclosures is still intensive and granular, the explanation reduces the burden for entities such as private equity funds and sovereign wealth funds with minority shareholdings in numerous companies.
The Notes to Form I have crystallised certain principles that have been accepted practice:
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While assessing the notification thresholds, parties are required to calculate the value of assets and turnover in accordance with the substance of the transaction and not its form. The Notes to Form I explain by way of an example: “if an enterprise A acquires a target entity B through a special purpose vehicle (SPV), then for enterprise level testing of thresholds, values of asset and turnover of A will be considered along with those of the SPV”.
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While considering the relevant entities for performing overlap analysis, the parties must consider the ‘ultimate controlling entity’ of the acquirer. From an acquirer’s perspective, the parties are not just required to consider the direct subsidiary of the ‘acquirer,’ but also sister concerns of the acquirer which may be under control of common promoter/s.
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The CCI has also clarified the scope of the term, ‘complementary products / services’ through the Notes to Form I. These products / services are neither horizontally nor vertically related, but rather enhance the value of the combined product or service, meriting an assessment as a separate category.
Non-compete covenants
On November 26, 2020, the CCI removed the need for disclosure of non-compete covenants. Previously, this disclosure required the notifying parties to undertake a detailed assessment of the non-compete arrangement, including the duration and scope, along with providing reasonable justification for such clauses. Occasionally, the case team would engage in a lengthy review of these clauses.
Big Tech: tentative steps towards regulation
The CCI passed two noteworthy orders in 2020 relating to online payments.
The WhatsApp Case
The case of Harshita Chawla v. WhatsApp and Facebook[1] (WhatsApp Case) involved an allegation that WhatsApp used its dominant position and vast user base to pre-install the payment app and bundle it with the messenger app.
The CCI found that WhatsApp was part of the market for “OTT (over the top) messaging apps through smartphones in India” and that WhatsApp Pay was part of the “market for UPI enabled Digital Payments Apps in India.” The CCI found that pre-installation of WhatsApp Pay did not establish abuse of dominance by WhatsApp, since the customers had the freewill to choose whether they wanted to use WhatsApp Pay or not. The CCI observed that the market comprised strong players such as PayTM, Phone Pe, Amazon Pay, etc. Basis the market structure and the prevalent vigorous competition amongst the existing players, the CCI noted “to perceive that WhatsApp Pay will automatically get a considerable market share only on the basis of its pre-installation seems implausible”. The CCI also noted that WhatsApp Pay had received regulatory approvals and was launched only after February 2020, therefore, it noted that the “actual conduct is yet to manifest in the market”. The CCI concluded (on August 18, 2020) that there existed no prima facie case and dismissed the allegations.
The GPay Case
On the other hand, the CCI passed an order under Section 26(1) of the Act in the matter of XYZ v. Alphabet Inc. and Others[2] (GPay Case). The informant alleged contravention of Section 4 of the Act by Alphabet, Google, etc. The CCI directed an investigation into various practices of Google such as the mandatory use of Google Play Store’s payment system for paid apps and in-app purchases, making rival UPI apps subject to inconvenient payment flow other than GPay, and the contractual arrangements regarding the pre-installation of GPay on Android Smartphones.
Interestingly, the CCI’s observations in its prima facie dismissal of the pre-installation allegations in the WhatsApp Case did not guide the CCI’s decision to investigate the very same allegations in the GPay Case. Whilst ordering a detailed investigation, the competitive and evolving market landscape in which the digital payment companies operate did not seem relevant to CCI (a fact that the CCI acknowledged in the WhatsApp Case). The rapid emergence of newer forms of digital payment solutions challenging the existing market dynamics, and the generally fluid popularity of any form of payment will make this an interesting case.
Cartels in the time of COVID
The Act empowers the CCI to inquire into any cartel, and to impose penalty upon the participants. These penalties for cartelisation could literally force entities to ‘break the bank’ since the statute prescribes that the penalties are computed as the higher of “10 percent of the turnover or 3 times the profit, of the entity, for each year of continuance of such conduct.”
However, in 2020, the CCI passed two orders, where they imposed no penalty on cartel participants. In its June 2020 order, In Re Cartelisation in Industrial and Automotive Bearings[3], the CCI passed a cease and desist order “in light of the peculiar facts and circumstances” of the case along with a warning for the enterprises to strictly comply with the Act. The order is silent in respect of what these peculiar circumstances may have been. If one were to hazard a guess, the obvious option was to focus on the year in which the case was decided (i.e., 2020) and to not penalise on account of the prevailing circumstances affecting the economy and the industry even though the period of alleged cartelisation was 2009 to 2011. Another curious circumstance in the case was that it involved a single leniency applicant and a strenuous denial by the other enterprises of any cartel amongst them. The defending companies also argued that even if the two internal emails in question were presumed to be an ‘understanding,’ the said understanding was not implemented in any event. It is not clear if the CCI felt compelled to impose zero penalty for the lack of direct evidence of the alleged cartel, in which case, it is not clear why there was a cease and desist order against the parties at all.
Then, in July 2020, the CCI did not impose any penalties on the cartel participants (many of whom were leniency applicants) In Re Railway Brake Blocks Cartel[4], in cognisance of “…the prevailing economic situation arising due to the outbreak of global pandemic (COVID-19) and the various measures undertaken by the Government of India to support the liquidity and credit needs of viable MSMEs to help them withstand the impact of the current shock.” MSMEs refer to Micro, Small and Medium Enterprises, a category of enterprises that enjoy protection and exemptions under certain laws (but not under Indian competition laws). The CCI closed the case with a cease and desist order cautioning parties against future violations of the Act.
These orders mark a significant departure from its usual approach of penalising cartels. These orders have invoked new found hope in the minds of the parties being investigated for cartel conduct on whether this approach of the CCI is a short term view to assist beleaguered businesses during the COVID-19 pandemic or a tectonic shift in CCI’s jurisprudence towards considering extraneous factors such as the economic climate prevailing at the time of its decision. Obviously, this is a blow to jurisprudence in India given that other competition regulators also wrote cartel decisions during the pandemic and may have more elegantly managed the economic reality of the times with the fact that there had been an evident violation of the law, in some cases, over an extended period of time preceding the pandemic.
Acceptance of voluntary remedies – ZF/WABCO
In February 2020, the CCI conditionally approved the notice filed by ZF Friedrichshafen AG (ZF) regarding its proposed acquisition of WABCO India Limited (WABCO), as part of its global acquisition of WABCO Holdings Inc.[5] The CCI conducted a detailed and data-intensive market study concluding that prima facie the transaction was bound to raise serious competition concerns across several markets. In response, ZF offered behavioural remedies which the CCI deemed insufficient to address its competition concerns. ZF then offered to divest its 49% shareholding in Brakes India Private Limited (a direct competitor of WABCO).
The CCI stipulated that ZF should complete the divestment within nine months (i.e., by end of January 2021). ZF proceeded with the closure of its acquisition of WABCO and sought an extension of six months to close the divestment which the CCI initially refused. ZF proceeded to file a writ before the Delhi High Court against the CCI’s refusal to grant an extension. Pending the writ, the CCI granted an extension up to April 2021. The case is likely to throw open the issue of whether the CCI will insist on simultaneous identification and approval of remedy buyer/s for complex transactions in future cases and engage in a closer monitoring of the implementation of its divestment orders, even where the divestment was voluntary.
Minority investments and remedies at the CCI
Canary Investment Limited and Link Investment Trust II notified their intention to acquire approximately 3% shareholding in Intas Pharmaceuticals Limited along with certain special rights[6]. The CCI observed that private equity groups generally raise funds from individuals and corporations to invest in businesses. The CCI stated that the followings factors are relevant in determining whether an acquisition is a mere investment or is strategic in nature: (a) representation on the board of directors (nomination of a director or an observer) and/or its committees (audit committee, appointment and remuneration committee, etc.); (b) veto or consultation rights with respect to strategically important corporate actions such as change in capital structure, mergers and acquisitions, appointment or termination of key managerial personnel, amendment to charter documents (articles of association and memorandum of association) and commencement of new line of business; and (c) the right to access non-public information. This order of the CCI is relevant as it has crystallised the CCI’s longstanding view (which is most often disclosed by case teams in pre-filing consultations) that transactions where the acquirer acquires a single board seat or even an observer position would be notifiable and merit assessment owing to the material influence that the acquirer will wield on the board of the target enterprise even with the presence of a single nominee (whether a director or an observer). With this approach, the CCI remains an outlier amongst competition regulators.
Noteworthy Trends
In various precedents, the locus standi of the informant-complainant to bring allegations before the CCI was discussed.[7] In December 2020, the Hon’ble Supreme Court of India (Supreme Court) in Samir Agrawal v. Competition Commission of India[8], set aside the National Company Law Appellate Tribunal’s[9] ruling on the subject. The Supreme Court noted that the term ‘complaint’ was substituted by ‘information’ by the Competition (Amendment) Act, 2007, which showed the legislature’s intent to enable the CCI to take cognisance of any information including that filed by an individual, who may not be personally affected. The Supreme Court also clarified that these proceedings are in rem and affect the public interest and was, therefore, inclined to take a broad view of the matter.
The CCI reemphasised that anti-competitive conduct by companies that are regulated by other regulatory bodies falls within the scope of its own jurisdiction in Brickwork Ratings India Pvt. Ltd. v. CRISIL Ltd. and Ors[10]. The CCI heard allegations against credit rating agencies, that fall under the purview of India’s securities regulator, the Securities and Exchange Board of India. The CCI eventually dismissed the allegations.
E-commerce investigations
On January 8, 2020, the CCI came out with its report on the e-commerce market study (that was commissioned in April 2019). The CCI urged that e-commerce platforms put in place transparency measures regarding search ranking, data collection and sharing, user review and rating mechanisms and discount policies to reduce information asymmetry and foster a sustainable e-commerce ecosystem as part of the guidance notes in the market study. On January 13, 2020, the CCI ordered an investigation into the activities of Amazon Seller Services Limited (Amazon) and Flipkart Internet Services Private Limited (Flipkart)[11]. This was based on allegations by Delhi Vyapar Mahasangh (an association of traders)that Amazon’s and Flipkart’s vertical arrangements with certain sellers offered preferential treatment to these few sellers, thus, foreclosing the market for others. The informant also alleged other anti-competitive activities practised by the e-commerce giants such as deep discounting, preferential listings, exclusive tie ups for launching mobile phones, etc.
It is interesting that the e-commerce market study and the complaint against Flipkart and Amazon were almost contemporaneous. The CCI’s observations in the market study were largely innocuous with the CCI taking a balanced stand on issues and leaving its position open (to be decided on a case by case basis). In the meanwhile, the CCI’s order for investigating the conduct of these e-commerce platforms was challenged by Amazon and Flipkart before the Hon’ble High Court of Karnataka (Karnataka High Court). The Karnataka High Court has stayed the investigation on the basis of the fact that the Enforcement Directorate (authority constituted for investigating violations of foreign investment norms) was already investigating the business model of Flipkart for violation of Press Note 3 of 2016 (lays down guidance for investment in e-commerce business)[12]. The Karnataka High Court was also of the view that the CCI ought to have shown that there exists an agreement between Flipkart and its preferred sellers. This was unlike the CCI’s investigation order, which was only limited to the inference of an ‘agreement’ between Flipkart and its preferred sellers. According to the Karnataka High Court, an inference of an agreement was not good enough. The Supreme Court refused to entertain the plea that came before it, but allowed for the petition to be agitated in case the relevant High Court did not settle the matter in time.
In November 2018 (not long before the launch of the e-commerce market study in April 2019), the CCI decided not to initiate an investigation against Flipkart for similar issues (preferential treatment, discounting etc) alleged by another body of traders (AIOVA case)[13]. However, this was not the end of the road for the traders who filed the complaint in the AIOVA case, thereafter, the traders appealed to the National Company Appellate Tribunal (CCI’s appellate authority) against the order of the CCI[14]. The NCLAT found that the traders had made out a case for predatory pricing against Flipkart basis past findings of the income tax authority which had studied the business model of Flipkart. Accordingly, the NCLAT opined that it deserved to be investigated by the office of the Director General (DG) and thus sent the case back to the CCI for ordering an investigation. Flipkart filed an appeal against the NCLAT’s order before the Supreme Court, which has since granted a stay on the directions of the NCLAT, and the matter is pending with it[15].
OTA investigations
Close on the heels of the CCI’s decision to investigate e-commerce platforms, in February 2020, the CCI ordered an investigation into the activities of MakeMyTrip India Private Limited (MMT) for abuse of dominant position and against MMT and Oravel Stays Private Limited (OYO) for entering into anticompetitive vertical agreements with MMT[16]. The investigations were initiated basis complaints filed by a hotel and restaurant association and Treebo, a budget hotel brand. Broadly, the allegations against MMT include: (a) as part of its contract with hotels, MMT imposes ‘across platform parity agreement requiring the hotels to maintain price parity at all times; (b) MMT has terminated listing of Treebo and FabHotel (another budget hotel operator) from its platform as they did not agree to pay commission demanded by MMT, leading to denial of market access. This ties in with the contention of the informant that MMT charges exorbitant commission; (c) MMT has been involved in pricing the rooms at below ‘average room rate.’ The deep discounting tactic of MMT has forced certain other online travel agencies (OTA) out of the market; (d) the commercial relationship between MMT and OYO was assailed on the grounds that it meted out preferential treatment for OYO (OYO also operates in the budget hotel category and competes with Treebo and FabHotel). It was also alleged that MMT’s partnership with OYO was what drove MMT to terminate listing of Treebo and FabHotel. In this case, the CCI will examine two primary issues: (a) whether the unilateral conduct of MMT leads to abuse of dominant position of MMT in the OTA market; (b) whether the vertical relationship with OYO leads to denial of market access to other budget hotel operators.
Recently, in March 2021, the CCI passed an interim order directing MMT to list FabHotel and Treebo on its platform, noting that the impugned exclusion had the “dangerous probability to irreversibly alter the competitive landscape.” We have discussed the implications of the interim order in our blog post here.
Conclusion
Despite the challenges faced by the CCI in light of the pandemic, it continued to regulate mergers, acquisitions and combinations largely within timelines, and showed increasing involvement in ensuring continuity. The CCI received about 90 merger filings, 80 of which has found CCI approval. The end of the antitrust year was especially notable. It was marked by the raids conducted by the CCI at the offices of various cement companies in the country in December. The CCI has also issued some notices for merger enforcement in the past few months.
In 2020, the CCI also commenced market studies on the telecom sector, mergers and acquisitions in digital markets[17], the pharmaceutical sector[18] and private equity investments[19] to better understand the markets and prevailing dynamics. The market study on the telecom sector was released in January 2021. One looks forward to the publication of the other studies in 2021-22, particularly the study on private equity investments and the question of whether the CCI could possibly reconsider the intensity of its assessment of minority investment acquisitions.
For further information, please contact:
Avaantika Kakkar, Partner, Cyril Amarchand Mangaldas
avaantika.kakkar@cyrilshroff.com
[1] Case No. 15 of 2020.
[2] Case No. 07 of 2020.
[3] Suo Moto Case No. 05 of 2017.
[4] Case Nos. 3 of 2016, 5 of 2016, 1 of 2018, 4 of 2018 and 8 of 2018.
[5] C-2019/11/703.
[6] C-2020/04/741.
[7] Please see the WhatsApp Case.
[8] Civil Appeal No. 3100 of 2020.
[9] Samir Agrawal v. Competition Commission of India and Ors. (Competition Appeal (AT) No. 11 of 2019 dated 29 May 2020.
[10] Case No. 47 of 2019.
[11] In Re: Delhi Vyapar Mahasangh v. Flipkart Internet Private Limited and Amazon Seller Services Private Limited (Case No. 40 of 2019).
[12] Amazon Seller Services Private Limited v. CCI, Writ Petition No. 3363 of 2020, Karnataka High Court.
[13] In Re: All India Vendors Association v. Flipkart India Private Limited and Ors.(Case No. 20 of 2018)
[14] Competition Appeal No. 16 of 2019.
[15] Civil Appeal No. 2770 of 2020.
[16] Case No. 1 of 2020.
[17] Please see https://economictimes.indiatimes.com/industry/telecom/telecom-news/competition-commission-initiates-studies-on-telecom-sector-ma-in-digital-market/articleshow/76264193.cms?from=mdr.
[18] Please see https://www.business-standard.com/article/economy-policy/after-e-commerce-cci-looks-at-pharma-sector-to-unlock-competition-120120300026_1.html.
[19] Please see https://www.bloombergquint.com/business/competition-comm-to-conduct-market-study-on-private-equity-investments-chairperson.
