Answer ... The merger control regime in India is mandatory (under Section 5 of the Competition Act) and suspensory (under Section 6 of the Competition Act).

A transaction is exempt from notification to the Competition Commission of India (CCI) if it meets the small target exemption. If the small target exemption is unavailable, the parties must assess whether the transaction falls under the exemptions specified in Schedule I of the CCI (Procedure in Regard to the Transaction of Business Relating to Combinations) Regulations, 2011 Combination Regulations (see question 2.7), which set out the transactions for which a merger notification “need not normally be filed” because they are presumed not to cause an appreciable adverse effect on competition (AAEC) in the relevant market due to factors such as:

• the profile of the acquirer/investor;
• the nature and structure of transaction; and
• the percentage of acquisition.

Transactions may also be exempt from notification if they relate to a covenant of a loan agreement or investment agreement (please see question 2.7 for the sectors/parties that are eligible for this exemption). If none of the exemptions is available and the jurisdictional thresholds are met, the CCI’s approval must be mandatorily sought.

Answer ... Parties intending to file a merger notification with the CCI can approach the CCI for an informal consultation prior to filing, in case of any doubts or queries regarding the filing procedures or the information to be provided as part of the merger filing. However, the advice given during such pre-filing consultation is non-binding and may not necessarily reflect the views of the CCI which may be formed after an in-depth review of the merger notification.

Parties can also approach the CCI for a pre-filing consultation on substantive issues (including interpretational issues such as the applicability of any exemptions).

Answer ... In a transaction structured as an acquisition, the obligation to notify rests with the acquirer; whereas in a merger or an amalgamation, as well as in the case of joint ventures, both transacting parties must notify the combination jointly to the CCI.

Answer ... The fee for a short-form filing on Form I is INR 2 million; while the fee for a long-form filing on Form II is INR 6.5 million.

Answer ... The nature of the information required from the parties will depend on the background to the relevant transaction. In general, the parties must provide the information requested through Form I (short form) and Form II (long form).

Form I: This provides a list of the information that must be submitted by the parties in case of a notifiable transaction. The CCI has published certain clarificatory notes to Form I (Introductory Notes and Notes to Form I) explaining the extent of the information that it expects for each question in Form I.

The following information is broadly required in a notice on Form I:

• information about each party to the transaction – for example:
• • name;
  • legal status;
  • contact information;
  • details of regulatory registration/incorporation;
  • details of authorised representatives; and
  • National Industrial Classification of its business activities;
• proof of payment of the filing fee;
• the names and contact details of individuals based in India who can receive communications from the CCI on behalf of the parties;
• details of the assets and turnover (India and worldwide) of the parties;
• the particulars of the proposed transaction – for example:
• • the steps involved;
  • the structure and value of the transaction;
  • details of other connected transactions;
  • the commercial objective of the transaction;
  • rights accruing to the parties from the transaction;
  • any non-compete obligations;
  • merger notifications made in foreign jurisdictions and
  • the particulars of incoming foreign investment (if any); and
• the business activities of the parties in India – for example:
• • details of the presence of the parties in India;
  • the business groups to which the parties belong;
  • a list of products manufactured by the parties;
  • an assessment of the overlaps between the parties’ business activities; and
  • an overview of the sectors in which the parties operate.

The following supporting documents must be filed alongside the notice in Form I:

• a certified copy of the authorisation in favour of a person signing the notice in the prescribed format;
• a copy of the proof of payment of the filing fee;
• copies of the relevant parties’ approval of the proposal relating to the transaction and their agreement/other documents executed in relation to the transaction;
• an authorisation letter in favour of a person located in India who is authorised to receive communication on behalf of the notifying parties from the CCI;
• a certified copy of any decisions passed in other jurisdictions in which the transaction has been filed and approved;
• copies of the most recent annual report and accounts of the parties to the transaction;
• copies of all presentations analysing the transaction prepared by or for, or received by, the management, the board of directors, the supervisory board, the shareholders’ meeting or similar (necessary only where the merging parties have overlapping activities or are engaged in vertically connected markets or the supply of complementary, non-competing but related goods/services); and
• two summaries prepared in accordance with Regulations 13(1A) and (1B) of the CCI (Procedure in Regard to the Transaction of; Business Relating to Combinations) Regulations, 2011.

Form II: A Form II filing is required if:

• the parties are competitors and hold a market share exceeding 15%; or
• the parties are vertically integrated and hold an individual or combined market share exceeding 25%.

In addition to the information specified for Form I above, the parties must submit certain additional information on matters such as:

• key managerial personnel;
• major customers/suppliers;
• control exercised in other enterprises engaged in vertically/horizontally linked activities;
• the relevant market (eg, product differentiation, ease of switching, presence of imports and exports);
• a detailed competition assessment;
• certain economic data (eg, concentration levels);
• research and development activities on the market;
• the conditions of entry/exit in the market;
• imports/exports;
• costs; and
• logistics.

The following key additional documents must be filed along with the notice in Form II:

• copies of analysis, reports, studies or surveys or any other document taken into account for the purpose of assessing the impact of the transaction and any documents prepared for the purposes of analysing the transaction with respect to:
• • market shares;
  • competition and competitors;
  • markets;
  • the potential for sales growth or expansion of products or geographical markets; and/or
  • the rationale for the merger;
• copies of the memorandum and articles of association of all parties to the transaction;
• a list of holders of 5% or more of the voting rights or shares, directly or indirectly, of the parties to the transaction; and
• for each party:
• • a list of the chief executive officer/chief financial officer/ directors/partners/trustees/persons in charge/persons acting in concert over the past year; and
  • a detailed organisational chart.

Answer ... The parties must notify the transaction at any time prior to consummation/closing, but after the trigger event has occurred (eg, the execution of definitive transaction documents/board approval for mergers and amalgamations).

Answer ... No. The signing of a definitive agreement/transaction document is the event that triggers a merger filing and a merger filing can be made only thereafter. In case of acquisitions, a merger filing can be made only after execution of the definitive transaction agreement/document. In case of a merger/amalgamation, the parties can notify the transaction only after the resolutions approving the merger/amalgamation have been passed by the respective boards of directors of the merging/amalgamating parties.

Answer ... Yes. The parties cannot close the transaction until the earlier of the date on which:

• approval has been granted by the CCI; or
• 210 days have passed from the date of filing of the notification before the CCI.

If the transaction is not approved within the outer time limit of 210 calendar days, it is deemed approved.

The above timeline has been reduced by the 2023 amendment act (see question 8.1). Where the CCI does not come to a prima facie opinion in respect of a transaction notified before it within 30 calendar days (as opposed to 30 working days as specified in the Competition Act), the transaction will be deemed approved. Further, where the CCI conducts an in-depth inquiry or initiates a Phase II investigation in relation to a proposed transaction (described in question 1.3), the transaction will be deemed approved within 150 calendar days (as opposed to 210 calendar days in the Competition Act). These changes have not yet entered into force as of the time of writing.

Answer ... The CCI requires the parties to submit a 500-word summary of the proposed transaction (excluding any confidential information) for publication on the CCI’s website as soon as they file the merger notification.

Once the transaction has been approved, the CCI will issue a brief email informing the parties accordingly. The detailed approval order of the CCI will follow within a few weeks of the date of approval of the CCI and will subsequently be published on its website.

The parties must submit a non-confidential version of the merger notification along with the confidential version to protect any confidential information provided by the parties in the notification. The CCI relies on non-confidential information only when preparing its final order. It is common practice for the CCI to publish orders with commercially sensitive information of the parties redacted. However, the CCI has discretion to include or exclude such confidential information – typically in discussion with the notifying parties – as part of the final approval order that is published on its official website.