Panel suggests automatic approval of merger deals by CCI

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SME Times News Bureau | 14 Aug, 2019
Suggesting key changes to the competition regulatory framework, a government committee has recommended a green channel route for automatic approval by the Competition Commission of India (CCI) of merger and acquisition (M&A) deals that have little or no adverse effect on market competition.

It has said such automatic approval should also be given to combinations arising out of the insolvency resolution process so that uncertainty about deals struck in the course of the resolution of stressed assets is removed and the process is fast-tracked.

Under the current Competition Act, combinations (mergers and acquisitions) beyond a certain threshold requires clearance from the fair trade watchdog CCI.

The panel has suggested a "green channel route" for automatic approval of certain combinations.

"A significant change has been recommended in the form of a 'Green Channel' for combination of notifications in recognisation of the need to enable fast paced regulatory approvals for vast majority of mergers and acquisitions that may have no major concerns regarding appreciable adverse effects on competitions," the panel report said.

Empirical evidence shows that most combinations need not be subjected standstill obligations in the first place, and hence they may simply disclose their transactions to the CCI and proceed to consummate it."

The aim is to move to a "disclose and comply" regime with strict consequence for not providing accurate or complete information, the report noted.

The Green Channel route should be the de facto route for merger notification and approval for majority cases. The government can formulate a detailed eligibility criteria in consultation with the CCI, it said.

Combinations arising out of the insolvency resolution process under the Insolvency and Bankruptcy Code (IBC) will also be eligible for "Green Channel" approvals, the report said.

The panel also calls for Introducing a dedicated bench in the National Company Law Appellate Tribunal (NCLAT) for hearing appeals under the Competition Act.

The mandatory 30-day timeline for completion of the first phase of review of combination cases should be included in the Act itself, the report said.

"This timeline would continue to govern combinations that are not eligible for the proposed Green Channel," it added.

The report also proposes that CCI must be mandated to issue guidelines on imposition of penalty. The panel notes that majority of penalties imposed by CCI remain uncovered due to litigation. The is expected to ensure transparency and more compliance by the businesses.

For speedier resolution of cases of anti-competitive conduct, the panel also sought to incorporate additional enforcement mechanism in the form of settlement and commitments that may be achieved outside the lengthy enforcecment process.

It also recommended when considering non-notifiable mergers, additional thresholds be considered for non-traditional or digital businesses.

"Even if the traditional asset and turnover thresholds are not met where the transaction value or deal value of a combination exceeds a certain limit, then it could be brought within the ambit of merger review", it said.

The committee has also called for insertion of a new explanation in the Act to cover hubs in "hub and spoke cartel" to provide clarity on the liability of hubs while assessing violations regarding anti-competitive agreements.