India: Thomas Cook Before The COMPAT- Much Ado About Nothing?

Last Updated: 23 September 2015
Article by Deeksha Manchanda

On 26 August, 2015, the Competition Appellate Tribunal passed a highly relevant order with respect to Section 5 and Section 6 of the Competition Act, 2002. While the matter gave the Appellate Tribunal an opportunity to clarify on what 'inter connected' and 'inter-dependent' means, the order fell short of providing the much needed clarity and while practitioners may revel in the COMPAT setting aside the order of the Competition Commission of India- the order is in fact the definition of much ado about nothing!

Background

The enforcement of Section 5 and 6 of the Competition Act, 2002 ('Act') has been a subject matter of much criticism and confusion – the criticism having, as obvious, a functional linkage to the confusion.1 In 2011 when the Competition Commission of India ('CCI') introduced the CCI (Procedure in regard to the transaction of Business relating to Combinations) Regulations, 2011 ('Combination Regulations') the expectation was that, the Combination Regulations would provide the much needed clarity for merger review in a suspensory jurisdiction. Various representations were made by the stakeholders2 on the draft regulations released earlier in 2009, which after ample considerations the Regulations were notified on 11 May, 2011.

However, the Combination Regulations did not provide the much needed clarity in all respects, and some uncertainty continued and continues to exist. At this stage, may I clarify- the lack of clarity in the enforcement regime has little to do with competence of the regulator and more intrinsically linked to it's nascency. The CCI, in fact, has shown ample maturity in merger regulations in various sectors.3 However, the nascency of the enforcement regime implies that the law, the regulator and even the practitioners still have a lot to learn.

The curious case of 'Composite Combination'

One of the areas, where the relative inexperience of the CCI and the ambiguity of the Act and the Regulations, is highly visible is the meaning, the interpretation, and the implication of 'inter-connected' and 'inter-dependent transactions' and their relation to 'composite combination'. While the former find some mention in the Combination Regulations, the latter is conspicuous by its complete absence in the statutory scheme.

With regard to 'inter-connected' and 'inter-dependent transactions' the seemingly innocuous Regulation 9(4) of the Combination Regulations provides that, "Where the ultimate intended effect of a business transaction is achieved by way of a series of steps or smaller individual transactions which are inter-connected or inter- dependent on each other, one or more of which may amount to a combination, a single notice, covering all these transactions, shall be filed by the parties to the combination."4 The said regulation hence, creates, what may at best be a rule of procedure- parties shall file one notice for more than one combination- if such combinations are steps intended to achieve one business transaction.

Interestingly, the CCI has through its orders created the concept of a 'composite combination' the scope of which is hazy and the statutory basis of which is a little elusive. Composite combinations are as such not a problem for the parties- the issue arises when the CCI having created the concept of 'composite combinations' hastens to make Section 6(2) of read with Section 43A of the Act applicable to the concept. This implies that, in what the CCI may term as a 'composite combination'- the parties have to notify the CCI irrespective of whether that individual step was notifiable or not. Failure to notify would incur the ire of the CCI and a fine under Section 43A of the Act.

The CCI's conception of 'Composite Combination'

There are few orders of the CCI which deal with the concept of a 'composite combination.' The first of these was the order in the Notice for amalgamation jointly filed by Sterlite Industries (India) Limited, the Madras Aluminium Company Limited, Ekaterina Limited and Sesa Goa Limited5 wherein the CCI held that transactions in a series or transactions which are inter-related and inter-dependent shall be considered as a composite whole.

Thereafter, 'composite combinations' featured in the order of the CCI under Section 43A in the Notice given by Etihad Airways and Jet Airways6 where while discussing whether the sale of the LHR slots was a contravention of Section 6(2) of the Act, the CCI in its notice to the parties stated that, "the Parties consummated and implemented certain parts of the composite combination viz. LHR Transaction and CCA." However the reasoned order of the CCI fails to describe in sufficient clarity, the meaning of composite combination. The CCI arrived at that conclusion on the basis of the transaction documents which revealed that the parties had consciously treated the two transactions as related transaction.7

After this order, it was only in the order under Section 43A in the Notice given by Thomas Cook (India) Limited, Thomas Cook Insurance Services (India) Limited and Sterling Holiday Resorts (India) Limited8 where the CCI issued notice to the parties since, the "Scheme and the [aforesaid] acquisitions as parts of one composite combination; and the Market Purchases, being a part of the composite combination, were consummated before giving notice to the Commission." In what was the first order providing some clarity on what the CCI thought about 'composite combination' the CCI found that there was no bar under the Act to consider different steps of a composite transaction as one combination.9 The CCI in this order finally gave some guidance on how to arrive at a conclusion of what a 'composite transaction' would be. At para 8, the CCI observed that, "...considering two different transactions as one combination depends on the facts and circumstances of each case with due regard to the subject matter of the transactions; the business and entities involved; simultaneity in negotiation, execution and consummation of the transactions; and also, whether it is practical and reasonable to isolate and view the transactions separately." Interestingly enough, the CCI in this order also indicated that the term 'composite combination' has some relation to Regulation 9(4) of the Combination regulation.10

Thereafter the CCI observed that it has never held that "mutual interdependence is the only test to determine a composite combination. It is relevant to note sub-regulation (4) of Regulation 9 which states that a business transaction could be achieved by way of a series of steps or smaller individual transactions which are inter-connected or inter-dependent on each other."11

This order suggested that 'composite combination' owes its existence to Regulation 9(4) of the Combination Regulation and the determination of composite nature would proceed on whether the transaction were inter connected and inter dependent on each other. However, curiously 'mutual interdependence would not be the sole test.' A 'composite combination' could exist only on the basis of inter-related transactions- which may or may not be inter-dependent. And of course, the determination would proceed on a case to case basis.

The parties having been slapped with a fine of INR 10 million approached the appellate authority in hope of some relief. The arguments made before the COMPAT were as expected- they broadly pleaded that:

  1. the market purchases were not a combination at all;
  2. the statute book does not define or describe a 'composite combination'; and
  3. even if 'composite combinations' do exist, the market purchases did not meet the criterion of being considered as composite.

The COMPAT's judgment

On 26 August 2015, the COMPAT passed the much anticipated order, setting aside the penalty imposed by the CCI.12 The COMPAT in its 50 page long order holds that the market purchases were exempt under the provisions of the Government of India Notification S.O. 482(E) dated March 4, 2011 ('de minimis exemption'). The COMPAT was of the view that the benefit of the de minimis exemption could not be denied to the market purchases solely on the ground that the "market purchases were intrinsically connected with other transactions." In the opinion of the COMPAT, while denying the benefit of the de minimus exemption, the , "Commission failed to take cognizance of the fact that the implementation of two-stage scheme for demerger/amalgamation was not dependent on the market purchase of equity shares of SHRIL by TCISIL and vice versa. Therefore, the mere fact that various transactions were executed in close proximity of the market purchases of the equity shares of SHRIL by TCISIL is not sufficient to deny the benefit of the exemption notification to the appellants."13

The COMPAT also notes that the de minimis exemption is not riddled with any exception and the benefit would not be simply ousted due to the close proximity of the transaction. Of course, the COMPAT also pointed out that the penalty for violation of Section 6(2) of the Act was merely technical, as the market purchases were brought to the notice of the CCI.14

An opportunity lost – what could the COMPAT have done

While Thomas Cook got what they were looking for and the penalty was set aside, the order of the COMPAT leaves many questions unanswered and creates many new complications.

(a) Absence of statutory base for 'composite combination'

The COMPAT made no observations whatsoever on the legal and statutory basis of 'composite combination' and did little to assess whether the CCI could create the concept. The COMPAT in fact, endorsed the existence of a 'composite combination.'15 The order seems to suggest that Regulation 9(4) cannot be used as a statutory basis for composite combination- however the said Regulation merely suggests an enabling procedural rule i.e. the parties are obligated to file one notice for multiple inter connected and inter dependent transactions and it does not create the concept of treating these transactions as one combination.16 In fact much to the contrary, it seems to suggest that each step should be considered separately to see whether it constitutes a combination. However, the COMPAT failed to note and highlight that the statute had no basis for a 'composite combination' and appreciate that mere bar in the Act would not give the CCI the power to create the concept.

I wish to clarify at this stage that treating several transactions as a single combination is not wrong per se. There appear to be sound reasoning in treating several transactions which fulfill certain criterion – as one combination. This would enable proper assessment as well as reduce the enforcement burden by decreasing the multiplicity of proceedings. In fact, in the European Union, Article 5(2) of the Merger Regulation17 gives the European Commission the power to treat one or more transactions as a single concentration. The Consolidate Jurisdictional Notice18 provides detailed guidelines on inter-related transactions as well as inter-dependent transactions where the ultimate effect is achieved through various steps.19 The problem in India is the absence 'composite combination' from the Act implying that ostensibly there is no statutory basis of the concept. However, reading down Section 5 of the Act and applying the substance over form doctrine,20 the COMPAT could have traced the legislative basis for 'composite combination.' The COMPAT lost what was a golden opportunity to do so, leaving it open for parties to contend- albeit with a high degree of risk- that 'composite combinations' do not in fact exist. Considering the degree of impact that merger control has on business it would have been infinitely better for the COMPAT to have tackled the bull by its horns rather than shying away from a major contention raised by the parties.

(b) Issues surrounding composite combinations

The COMPAT could have used the order as a means to clarify various issues that arise out of the concept. The main issue in such 'composite combinations' is whether the various steps would be treated as separate combinations, if they cross the Section 5 threshold or would the CCI treat various steps as a single combination.21 A priori, this raises the issue of the applicability of exemptions under Schedule I of the Combination Regulation- whether they would apply to each step or the whole combination- if the latter how would be combination be viewed. The CCI as well as the COMPAT seem to suggest that this would lead to a technical interpretation of Section 5 to isolate different steps/transactions of a composite combination, which would be against the spirit and provision of the Act.22 If so, this raises the issue of determination of thresholds, specifically if the identity of the parties is different for different steps. Further confusion may be created by applicability of the de minimis transactions- more so since it does not apply to mergers. While the order of the COMPAT, in view of the facts of the case, might not have suitably addressed all these issues- some could have been addressed.

(c) Test for composite combinations

In so far as the test for determination of 'composite combination' is concerned the order makes the situation more complicated. The test of 'composite combination' laid down by the CCI in its orders was inter-related or inter dependent. Proximity of transactions; being envisaged in a single document- were treated as evidence of inter-relation and interdependence was not found to be essential for a 'composite combination' by the CCI. The COMPAT however at para 21 of the order appears to be suggesting that mutual interdependence is essential for determination of whether a transaction was composite or not- thereby reducing the scope of 'composite combination' as created by the CCI. It appears to be a decided position that mere proximity of consummation would not suffice to show that transactions are a 'composite combination.' However, the COMPAT failed to lay down a clear test of how would one arrive at a determination of composite nature of a combination. What one would have hoped for was a order which laid down with sufficient clarity on how the parties could determine whether the combination was composite in nature. However, the order of the COMPAT only creates more questions. Is mutual interdependence the primary test? The order of the COMPAT suggests so but then fails to categorically lay down the basis on which it arrived at its determination. While criticizing the CCI order for not proceeding from sound legal basis, the COMPAT order fails to provide any legal basis for how it arrived at a determination of the market purchases not being a part of a composite transaction.

(d) What is the scope of gun jumping under the Act?

The final issue which one faces with the COMPAT order is on what the violation actually was. Section 43A of the Act states that, "If any person or enterprise who fails to give notice to the Commission under sub- section(2) of section 6, the Commission shall impose on such person or enterprise a penalty which may extend to one percent, of the total turnover or the assets, whichever is higher, of such a combination." The COMPAT appears to be moving on the presumption that the violation in the instant case was the failure to notify the market purchases. However, according to the CCI the violation in the instant case was in fact the consummation of market purchases- which were seen by the CCI as a part of a 'composite combination'- without approval of the CCI and failure to give notice.23 In this regard the COMPAT was of the view that there was no, "valid ground or justification for sustaining the penalty because the violation, if any, of Section 6(2) was purely technical."24

Accordingly to the COMPAT irrespective of whether a single notice was filed or a separate notice was filed "for grant of approval of the market purchases of equity shares, the same would, in all probability, have been granted by the Commission by relying upon the order dated 05.03.2014."25 According to the COMPAT, the market purchases were revealed by the parties and the approval was given by the CCI being well aware of the market purchases-making the violation merely technical. This highlights an interesting flaw in the CCI's approach which the COMPAT, it appears saw, but failed to directly address. If the market purchases were a part of the composite combination, notice was in fact duly filed by the parties. The issue was hence not failure to file notice but consummation of part of the transaction without approval- a well recognized form of gun jumping worldwide- which is a violation of Section 6(2A) of the Act. However, Section 43A of the Act makes only the contravention of Section 6(2) a violation and not Section 6(2A) of the Act. Therefore, consummation without approval would technically attract no penalty. The CCI has however creatively represented a violation of Section 6(2A) of the Act as a failure to file notice. This time around though the dangers of the strategy have become evident- however the COMPAT again fell short of dealing with this issue directly.

Conclusion

The COMPAT in this appeal had the opportunity to provide the much needed clarity on 'composite combinations' however, the COMPAT clearly lost the chance to do so leaving practitioners to grapple in the dark waiting for clear judgments or regulatory guidance. Given the stakes involved- which include not just the possibility of a liability but the basic issue of transparency in regulatory process- it is hoped that the CCI will lay down some guideline clarifying its approach on 'composite combinations.'

Footnotes

1. See generally, Satarwala and Handoll, India: Merger Control, the Asia Pacific Antitrust Review 2015, GCR available at :http://globalcompetitionreview.com/reviews/69/sections/235/chapters/2751/; US India Business Council Legal Services Newsletter available at: , India: Merger Control, the Asia Pacific Antitrust Review 2015, GCR available at :http://globalcompetitionreview.com/reviews/69/sections/235/chapters/2751/; US India Business Council Legal Services Newsletter available at: http://www.jsalaw.com/Admin/uplodedfiles/PublicationFiles/An%20Overview%20of%20Key%20Legislations%20That%20Govern%20Foreign%20Investments%20Into%20India.pdf

2. See, Bombay's Chamber Response on the Draft Competition Commission (Combination) Regulations. Available at: http://www.competition-commission-india.nic.in/regulations/Comments_Regulations/BCCI_Combination_Regulations.pdf; Ishaat Hussain, Competition Act, 2002 & Draft CCI (Combination) Regulation. Available at: http://www.competition-commission-india.nic.in/regulations/Comments_Regulations/TATASons_COMMENTS.pdf

3. Reference in this regard may be made to the pharmaceutical sector. See generally, Notice given by Novartis and GlaxoSmithKline Plc, (C-2014/07/188 order dt. 12 December 2014), Notice given by Sun Pharmaceutical Laboratories Ltd and Ranbaxy Laboratories Ltd (C-2014/05/170 order dt. 05 December 2014). The CCI in a short span has arrived at a mature understanding of the relevant market in the sector.

4. As the readers may or may not be aware the said regulation was amended by the recent Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Amendment Regulations, 2015. Before the amendment, Regulation 9(4) provided that "Where the ultimate intended effect of a business transaction is achieved by way of a series of steps or smaller individual transactions which are inter-connected or inter- dependent on each other, one or more of which may amount to a combination, a single notice, covering all these transactions, may be filed by the parties to the combination."

5. C-2012/03/45, order dt. 12 April 2012

6. C-2013/05/122, order dt. 19 December 2013

7. Id. at para 7.1 "These provisions of the IA and LHR Sale Agreement suggest that the Parties had consciously treated/pursued these two transactions as related transactions. While it may be open for Jet to sell its slots to any airline to meet its financial needs, the fact that the slots were sold to Etihad; and the IA (a) incorporates LHR Slots Agreement as one of the Transaction Documents and (b) stipulates the Commission's approval for implementation of the arrangements provided for in each Transaction Document, suggest that the Parties intended to pursue different steps including the IA, SHA, CCA and the LHR Slots Agreement as one composite business combination"

8. C-2014/02/153 order dt. 21 May 2014

9. Id. para 7.1. Notably, this would run contrary to Regulation 9(4) which provides that one or more steps of the ultimate business objective may be combinations.

10. Id. para 7.2 where the CCI with respect to Regulation 9(4) of the Combination Regulation observes that, "This provision clearly acknowledges the possibility a business transaction being achieved by way of inter-connected or inter-dependent steps/transactions. It is further observed that it is not uncommon for unrelated enterprises to envisage acquisition of shares followed by scheme of arrangement under the relevant provisions of the Companies Act. Any technical interpretation of Section 5 to isolate two different steps/transactions of a composite combination is against the spirit and provisions of the Act."

11. id. at para 8

12. Thomas Cook (India) Limited & Ors v. Competition Commission of India, Appeal No. 48 of 2014 order dated 26 August 2015

13. Id at para 21

14. Id at para 22

15. Reference in this regard may be made to para 25 where the COMPAT notes that, "The Commission is right in observing that any technical interpretation of Section 5 to isolate two different steps/transactions of a composite combination is against the spirit and provisions of the Act, but this observation has no bearing on the applicants' case."

16. See para 25 where the COMPAT holds that, "In so far as Regulation 9(4) is concerned, the object thereof is to facilitate filing of one notice in respect of various interconnected/interrelated/interdependent transactions. This implies that if the parties take several steps or enter into multiple transactions for achieving the object of combination then they are not required to file separate notice under Section 6(2) and it will be sufficient if one notice is filed for seeking approval under Section 31(1)."

17. Council Regulation (EC) No. 139/2004. Article 5(2) of the said Regulation provides, "However, two or more transactions within the meaning of the first subparagraph which take place within a two-year period between the same persons or undertakings shall be treated as one and the same concentration arising on the date of the last transaction."

18. Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No. 139/2004 on the control of concentrations between undertakings

19. It may be noted that there is a difference between composite combinations as seen under the European Regulations and by the Indian Regulator. In E.U., multiple steps which are inter-related and interdependent are treated as a single concentration. The CCI however seems to be of the view (which is buttressed by a reading of Regulation 9(4) of the Combination Regulation) that various inter-related and interdependent 'combinations' may be notified by way of one notice. This is evident from Notice given by Sapphire Foods India Private Limited (C-2015/06/285 order dt. 13 August, 2015) and Notice given by Novartis and GlaxoSmithKline Plc , supra n. 3.

20. While the doctrine has sufficient basis in case law, Regulation 9(5) now provides a legal basis to the substance over form test. The said Regulation provides, "The requirement of filing notice under regulation 5 of these regulations shall be determined with respect to the substance of the transaction and any structure of the transaction(s), comprising a combination, that has the effect of avoiding notice in respect of the whole or a part of the combination shall be disregarded. "

21. While the order of the CCI in Thomas Cook suggests that they would be treated as one combination, regulation 9(4) suggests otherwise

22. Supra n. 13 at para 25

23. Supra n. 8 at para 3

24. Id. at para 21

25. Id at para 24

The author is an Associate at Luthra & Luthra Law Offices, New Delhi. She primarily practices competition law. A 2011 graduate from National Law Institute University, Bhopal, she was a Commonwealth Scholar at the University of Oxford where she completed her Bachelors in Civil Law with a distinction. She can be reached at dmanchanda@luthra.com.

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