Sonam Mathur Dhruv Dikshit October 27 2022 How far can the CCI look back to examine M&A activity? TT&A | Competition & Antitrust - India Sonam Mathur, Dhruv Dikshit Competition & Antitrust IntroductionFactsDecisionCommentIntroductionThe Competition Commission of India (CCI) closely tracks M&A activity to identify transactions that should be notified for its approval. Under its mandatory and suspensory regime, the CCI also has the ability to "look back" and inquire into transactions that have not been notified for up to one year from the date on which they have taken effect. In such cases, the CCI has the power to impose penalties on parties for up to 1% of the total turnover or assets (whichever is higher).(1)In practice, however, the CCI has scrutinised transactions that have been completed or closed much earlier – that is, beyond the one-year time period. Recently, the CCI imposed a penalty of 3 million Indian rupees (approximately $36,837) on Global Infrastructure Partners Private Limited (GIP) for its failure to notify an acquisition that was closed and consummated over four years earlier.(2)Facts In April 2018, GIP entered into a business transfer agreement with IDFC Alternatives Limited to acquire the infrastructure fund management business of two funds (as a going concern) – India Infrastructure Fund I and India Infrastructure Fund II. GIP also acquired certain assets, liabilities and the relevant fund management team. The transaction was not notified to the CCI for its approval and came into effect on 1 July 2018.In December 2021, the CCI issued a show cause notice to GIP, directing it to furnish certain information to determine whether further proceedings were required. In its submissions, GIP contended that:the transaction had closed four years earlier and, as per section 20(1) of the Competition Act 2002 (the Competition Act), the CCI cannot initiate an inquiry into a transaction after the expiry of one year from the date on which it comes into effect; andGIP had been under the genuine belief that the transaction could benefit from the de minimis exemption (ie, target exemption) and no notification to the CCI was required. The transaction had been consummated under this genuine belief.It was noted that GIP had not considered the financials of the controlled portfolio entities held by the infrastructure funds in its assessment for the applicability of the de minimis exemption in 2018. However, in a 2021 decision,(3) the CCI clarified that in case of an acquisition of an investment management business, the value of assets and turnover of controlled portfolio entities should also be considered as those of the target for thresholds assessment. When GIP reassessed the requirement to notify after receiving the show cause notice from CCI, the transaction did not qualify for the de minimis exemption in light of the recent decisional practice.Based on the above, GIP requested the CCI to immediately conclude the proceedings (especially since the transaction had already been consummated). Further, to cooperate with the CCI, GIP accepted the error and waived its right to notice and opportunity to represent its case before the CCI for penalty proceedings under section 43A of the Competition Act. GIP accordingly submitted itself to any penalty that may be levied by the CCI and stated that it would immediately comply with the CCI's order "without any demur or protest".DecisionIn its decision, the CCI distinguished between inquiry proceedings under section 20(1) and penalty proceedings under section 43A of the Competition Act. It noted that the statutory period of limitation is applicable to the former and does not extend to the latter. The CCI also noted that proceedings in relation to a transaction are not just limited to an inquiry under section 20(1) but also fall under section 43A of the Competition Act to ascertain whether parties have failed to notify a transaction to the CCI. On this basis, the CCI held that penalty proceedings against GIP are not time barred or curtailed by the statutory limitation on inquiry under section 20(1) of the Competition Act.The CCI also reiterated its findings from the Investcorp case(4) that in case of an acquisition of investment management funds (such as the infrastructure funds in this case), the acquirer would also gain control over portfolio entities of the fund. Therefore, for the purpose of jurisdictional thresholds, the value of assets and turnover of the controlled portfolio entities are also required to be consolidated along with the target to assess whether a proposed transaction would trigger a merger notification under the Competition Act.Comment This decision reiterates the position taken by the CCI that the limitation period of one year to inquire into transactions which have not been notified is only applicable to the ability to assess the competitive impact of a transaction. However, parties to such a transaction may still be penalised for failing to notify the transaction to the CCI, even if the "effect" of the transaction cannot be assessed.This had earlier been stated in IDAL/Polaris where the CCI held that section 20(1) only imposes a limitation of one year on the competition assessment of a transaction, and not for the initiation of section 43A proceedings.(5) Penalty proceedings under section 43A of the Competition Act provide for deterrence in cases where notifiable transactions were not brought before the CCI to seek prior merger clearance. Similarly, in Zulia/Kinder, the CCI noted that failure to notify "cannot be treated as a routine compliance default" as it could potentially have "grave consequences", defeating the very purpose of ex-ante regulation of transactions.(6)In another instance, the CCI initiated penalty proceedings against Amazon in June 2021 for its acquisition of a 49% shareholding of Future Coupons Private Limited, where the transaction was approved by the CCI in November 2019(7) and closed in December 2019.(8) Interestingly, this case highlights that the CCI will not be bound by any limitation period or restriction whatsoever from reopening a case and suspending its merger clearance in case of misrepresentation or concealment of material facts.For further information on this topic please contact Sonam Mathur or Dhruv Dikshit at TTA by telephone (+91 11 46299999) or email ([email protected] or [email protected]). The TTA website can be accessed at www.tta.in.Riya Shah, associate, assisted in the preparation of this article.Endnotes(1) Section 43A of the Competition Act – "Power to impose penalty for non-furnishing of information on combinations":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.(2) Order dated 30 August 2022 under section 43A – GIP/IDFC Alternatives.(3) Order dated 17 December 2021 under section 43A – Investcorp/IDFC Alternatives.(4) Id.(5) Order dated 7 May 2018 under section 43A – IDAL/Polaris Financial.(6) Order dated 1 August 2013 under section 43A – Zulia/Kinder, Combination Registration No. C-2013/06/124.(7) Order dated 17 December 2021 under sections 43A, 44 and 45 – Amazon/Future Coupons, Combination Registration No. C-2019/09/688.(8) Order dated 13 June 2022, Amazon.com NV Investment Holdings LLC v CCI & Ors, Competition Appeal (AT) No. 1 of 2022 – see paragraphs 10 and 76.