INDIAN UPDATE – Phase II Combination Investigations by the CCI
Executive Summary: While most merger transactions have been passed by the Competition Commission of India (“CCI”) without conducting a detailed investigation, the CCI has escalated recent combinations to such greater review. This article examines the procedure of the CCI in relation to so-called Phase II inquiries in proposed combinations and highlights some of the teething issues that may be associated with such inquiries.
Since the operationalization of the merger control rules in June 2011, the Competition Commission of India (‘CCI’) has reviewed close to 200 transactions (referred to as ‘combinations’) without conducting a detailed investigation, or Phase II inquiry, of a proposed combination. By and large CCI has approved most proposed combinations within 4 to 8 weeks of the receipt of notification by the parties. Notably, CCI took significantly longer – 168 days – to review and issue an approval order in respect of Etihad’s proposal to acquire a 24% stake in Jet1. Nonetheless, CCI did not see the need to subject a proposed combination to the detailed scrutiny of a Phase II inquiry.
In the last three months though, CCI has in quick succession, escalated two proposed combinations to Phase II review. In September 2014, CCI formally announced the opening of a Phase II inquiry of the proposed combination between Sun Pharmaceutical Industries Limited (‘Sun’) and Ranbaxy Laboratories Limited (‘Ranbaxy’) (‘Sun-Ranbaxy Transaction’). On December 5, 2014 CCI approved the Sun-Ranbaxy Transaction, ending the first ever Phase II review initiated by it. CCI followed this up with commencing a Phase II inquiry of the combination between Holcim Limited (‘Holcim’) and Lafarge S.A. (‘Lafarge’) (‘Holcim-Lafarge Transaction’) in November 2014. Undoubtedly, CCI has done an excellent job in streamlining the merger control regulations and approving transactions well within the 210 days statutory outer limit prescribed under the Competition Act, 2002 (‘Competition Act’) for approving transactions, however, the procedure on Phase II inquiries though remains a little unclear.
In light of CCI concurrently conducting 2 detailed Phase II inquiries, this article seeks to provide an overview of the procedure followed by CCI in Phase II inquiries and highlights some of the teething issues that may be associated with Phase II inquiries.
General CCI processes regarding combination inquiries
As a general rule, CCI is required to issue a prima facie opinion on whether a proposed combination causes or is likely to cause an appreciable adverse effect on competition (‘AAEC’) in India within 30 calendar days of receipt of a notice. The time taken by the parties to the combination to respond to CCI’s requests for additional information is not counted towards the 30 day period. If CCI reaches the prima facie opinion that a proposed combination does not (or is not likely to) cause an AAEC in India, it issues a formal order approving the proposed combination. Otherwise, CCI issues a notice under Section 29 of the Competition Act (‘Section 29 Notice’) seeking the parties’ view on why a detailed investigation to examine the competitive effects of the proposed combination should not be carried out. If the relevant parties successfully address CCI’s concerns, including by way of offering structural remedies or behavioral commitments, CCI does not initiate a formal inquiry and approves the transaction. Conversely, if the CCI is not satisfied by the responses offered by relevant parties, then CCI initiates a formal Phase II inquiry.
The Phase II process
Upon receipt of a response to the Section 29 Notice, CCI may, at its discretion, request its investigative arm, the Director General (‘DG’), to conduct an investigation and submit a report in respect of the proposed combination. Simultaneously and within 7 days of receipt of the report from the DG, or the parties’ response to the Section 29 Notice, CCI is required to direct the parties to publish the details of the proposed combination (‘Publication Direction’), which must be complied with, within 10 working days of such a direction. The publication entails providing details of the proposed combination in the format prescribed under the merger control regulations (known as a Form IV). The parties are required to upload a completed Form IV on their respective websites and also publish it in 2 national dailies. CCI also posts the Form IV on its website within 10 days of issuance of the Publication Direction (‘Public Disclosure’).
Pursuant to the Public Disclosure, CCI may invite written objections to the combination from any person affected or likely to be affected due to the proposed combination coming into effect (‘Public Objections’). The Public Objections must be filed within 15 days of the Public Disclosure. Subsequent to the receipt of Public Objections, CCI must within 15 working days seek additional information, if it wishes to, from the parties. Again, the parties are offered a 15 day window to submit such additional information to CCI.
After the receipt of additional information requested by CCI from the parties, CCI is required to issue an order either (i) approving the transaction, (ii) disallowing the transaction, or (iii) proposing modifications to the transaction (‘Remedies’). If CCI proposes Remedies, the parties have the flexibility to propose modifications to CCI’s proposed Remedies. CCI may either accept the modification proposed by the parties or compel the parties to accept the Remedies initially identified by it if CCI is not satisfied with the parties’ proposed modification.
The parties are required to carry out the modifications within such time as CCI may prescribe and upon completion of the modifications, the parties need to file a compliance report with CCI.
Indian Experience with Phase II investigations
On December 5, 2014 CCI approved the Sun-Ranbaxy Transaction but ordered the divestment of all tamsulosin and tolterodine products of Sun and six other products marketed by Ranbaxy. The combined market share of Sun and Ranbaxy for the products to be divested are in the range of 90-95%, CCI. The high combined market shares in these eight products appear to be the key reason for the CCI’s decision to require their divestiture.
CCI has stated that the transaction shall not be given effect until the divestments have been entered made, in accordance with the orders of CCI.
The Holcim-Lafarge Transaction is still at the Public Disclosure stage. While CCI did not escalate its inquiry to Phase II investigation, on at least on 2 occasions, CCI has required parties to transactions in the pharmaceutical sector to modify the terms of their non-compete agreements.