M M Sharma November 16 2017 CCI approves merger of Bharti Airtel and Telenor Vaish Associates Advocates | Competition & Antitrust - India M M Sharma Competition & Antitrust FactsDecisionBy way of a May 30 2017 order, the Competition Commission of India (CCI) approved the amalgamation of Telenor India (including its assets, liabilities, interests and obligations) with Airtel through a court-driven merger scheme.(1)FactsBharti Airtel Ltd, part of the Bharti Enterprises group, is a publicly traded global telecoms corporation with operations in 17 countries across Asia and Africa. It provides various business-to-business and business-to-consumer telecoms services, as well as mobile telephony services in all telecoms sectors in India.Telenor India provides telecoms services in seven telecoms sectors in India.DecisionOn the basis of the overlap between the parties' services in India, the CCI identified three product markets:retail mobile telephony services;national long-distance services; andinternational long-distance services.It therefore undertook a competition analysis of each of these sectors.The CCI noted that although there are eight telecoms operators (including Airtel and Telenor) in all of the overlapping markets, the retail mobile telephony services market is concentrated. In regard to the specific impact of the proposed merger on the level of such concentration, the CCI observed that the incremental market shares range from 3.8% in Andhra Pradesh to 9.7% in Uttar Pradesh (West) and the incremental Herfindahl-Hirschman Indexes range from 243 in Gujarat to 770 in Bihar. However, the combined market shares of Airtel and Telenor range from approximately 24% in Gujarat to approximately 57% in Bihar. The CCI noted that the level of combined market shares is also higher in Andhra Pradesh (46%), Uttar Pradesh (East) (39%) and Uttar Pradesh (West) (31%).Further, the CCI noted that the issue of market shares is governed by the Guidelines for Transfer/Merger of Service Licences on Compromises, Arrangements and Amalgamation of Companies issued by the Ministry of Communications and Information Technology in 2014. Under the guidelines, where merger, acquisition or amalgamation proposals result in the market share in any service area exceeding 50%, the combined entity must reduce its market share to a maximum of 50% within a one-year period from the date of approval of the merger, acquisition or amalgamation. If the combined entity fails to reduce its market share to a maximum of 50% within the specified timeframe, suitable action may be taken by the licensor. The CCI observed that the market share in the Bihar telecoms sector is subject to the merger guidelines and that Airtel had submitted an undertaking regarding its compliance with the prescribed market shares as per the guidelines.The CCI also undertook an assessment of the proposed merger pursuant to Section 20(4) of the Competition Act.The CCI analysed Telenor's product offering, range of products and financial strength, and concluded that it is neither a close competitor nor an effective competitor of Airtel. The CCI therefore held that the merger was unlikely to result in a substantial change to competition in retail mobile telephony services in any of the overlapping markets and accordingly raised no unilateral or coordinated effect concerns.With regard to national and international long-distance services, the CCI observed that on account of the presence of other competitors, Airtel was unlikely to have the ability or incentive to restrict the supply services and thereby cause any competition concerns.Further, it observed that Telenor was not active in the market for the provision of passive infrastructure services and wholesale data services.The CCI held that the proposed merger was unlikely to cause an appreciable adverse effect on competition in India and therefore approved it under Section 31(1) of the Competition Act.For further information on this topic please contact MM Sharma at Vaish Associates by telephone (+91 11 4249 2525) or email ([email protected]). The Vaish Associates website can be accessed at www.vaishlaw.com.Endnotes(1) CCI decision, May 30 2017. For further details please see the CCI website.