On October 1, 2019, CCI approved the acquisition of 44.44% shares in GMR Airports Limited ('GMR') by TRIL Urban Transport Private Limited ('TUTPL'), Valkyrie Investment Pte. Limited ('VIPL'), and Solis Capital (Singapore) Pte. Limited ('Solis') (together, 'Acquirers')1. Acquirers and GMR together are referred as 'Parties'.2
TUTPL is part of the Tata Sons Private Limited ('Tata Sons') group. Tata Sons group, among other businesses, has majority stake in two airlines, namely, AirAsia India, and Vistara Airlines. VIPL is a private limited company incorporated in Singapore, and is a special purpose vehicle registered with the SEBI as a foreign venture capital investor ('FVCI'), and is a part of a group of investment holding companies managed by GIC Special Investments Private Limited ('GICSI'), which in turn is owned by GIC (Ventures) Private Limited ('GICVPL').3 Similarly, Solis is also a registered FVCI, and is an investment vehicle advised by SSG Capital Management (Singapore) Pte. Ltd. ('SSG Capital').4 Tata Sons group, GIC group, and SSG group are collectively referred to as 'Acquirers' Group'.
GMR is a public limited company and a subsidiary of GMR Infrastructure Limited ('GIL'), which is the ultimate parent entity of the GMR group. GMR, through its subsidiaries, operates and manages the Delhi and Hyderabad airports. In India, GMR is also developing a greenfield airport in Goa and Bhogapuram; and will develop and operate Nagpur airport on public private partnership basis ('Target Airports').
CCI observed that there were no horizontal overlaps between the Acquirers' Group and the GMR group. It also observed that there were no vertical relationships between the activities of the GIC group / SSG group and the GMR group.
However, CCI noted that GMR's upstream business segment of development, operation and maintenance of the airport, is in a vertical relationship with services provided by the entities of the Tata Sons group, namely, provision of scheduled air transport services, non-scheduled air transport service, food and beverage services, retail services, in-flight catering services, ground handling services, cargo services, and maintenance and repair operations ('MRO'). CCI also found that the transaction envisages Tata Sons group's control over certain reserved matters and a board seat in the entities of GMR. Accordingly, for its analysis of this vertical overlap, CCI delineated the following relevant markets: (i) upstream market for provision of access to airport facilities / premises at each of the Target Airports; and (ii) downstream market for provision of air transport activities and other specific services at each of the Target Airports.
With the acquisition of stake by Tata Sons group in GMR, and its presence in the airlines business and other associated businesses / services provided at airports, Tata Sons group would have presence in both the upstream and the downstream markets, as defined above. CCI observed that the vertical relationship between the Tata Sons group and GMR group, may lead to vertical integration, by virtue of which, Parties may be incentivized to foreclose competing airlines and other service providers. To alleviate any potential conflict of interest arising out of Tata Sons group acquiring stake in GMR, the Acquirers offered the following voluntary modification: ('Voluntary Modification'):
i. The Acquirers will not appoint a direct on the board of directors of the 'Airport Concession Entities' operating or would be operating in India, and 'Key Managerial Persons' in the 'Airport Concession Entities' operating or would be operating in India.
ii. The director nominated by the Acquirers on the board of GMR, shall recuse himself if any discussion of voting takes place on a matter pertaining to allocation of slots to any airline.
iii. GMR shall ensure that no commercially sensitive information relating to slot allocation should be disclosed to the nominee director of the Acquirers on GMR's board resulting in Acquirers obtaining an undue commercial advantage.
iv. The Parties shall put in place adequate monitoring mechanisms and shall ensure that the Airport Concession Entities follow the principles of competition law including competition neutrality, level playing field and fairness.
v. The Parties commit that there will be no directors by the Parties on the board of GMR who is also a director in any entity operating a scheduled airline in India or outside India.
CCI held that the Voluntary Modification is likely to address the vertical integration concerns and accordingly approved the transaction.
1 Pursuant to certain clauses in the shareholders agreement, each acquirer may further increase their equity stake in GMR such that the collective shareholding of the Acquirers will increase up to 55.2%.
2 Combination Registration No. C-2019/07/676
3 Both GICSI and GICVPL are wholly-owned by the Minister for Finance, a body corporate established under section 2(1) of the Minister for Finance (Incorporation) Act, Chapter 183 of Singapore. 'GIC group' would refer to a group of investment holding companies managed by GICSI.
4 SSG Capital is licensed by Monetary Authority of Singapore to undertake fund management activities. Both Solis and SSG Capital are part of the SSG group of companies ('SSG group'). SSG group is an alternative asset management firm founded in 2009 and focuses on investments in the Asia Pacific region.
5 As defined in the shareholders' agreement.
Originally published - January 2020
Date : January 17, 2020
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