Introduction
The ‘Green Channel Route’ for Combinations under the Competition Act was analysed and approved by the CCI in 2019. The CCI has eased the process of application for notification of any combination. This has opened the doors for self-analysis by the entities before the notification. The Chairperson of CCI, Mr. Ashok Kumar Gupta, has stated at the United Nations Conference on Trade and Development (“UNCTAD”) that, the “Green Channel mechanism for automatic approvals is the first of its kind in the world.” There have been more than fifty applications through the ‘Green Channel Route’ that have been approved by the CCI.
The Green Channel Mechanism
The parties to a merger or the acquirer in an acquisition must notify the Commission about their combination under Regulation 9 of the Combination Regulation. Regulation 5 of The Competition Commission of India (Procedure regarding the transaction of business relating to combinations) Regulations, 2011 specifies the forms of notice for the proposed combination. Under Regulation 5, there are two types of forms- Form I, and Form II. Parties have to file for combination either in Form I or Form II as specified in Schedule II to these regulations. Form I is a comparatively smaller form. Regulation 5(3) specifies that the parties at their discretion may file a lengthy application under Form II, which is a detailed form.
The Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Amendment Regulations, 2019, added Regulation 5A: The notice for approval of the combination under the Green Channel. The procedure for application through this regulation is in pursuance to the specimens in Schedule III. The parties may apply Form I as specified in Regulation 5(2), along with a declaration under Schedule IV. Under sub-regulation (2) of Regulation 5A, there is an instant approval by the CCI, eliminating the 210 days for assessment by the Commission. The Commission is, however, very strict regarding the specimens provided in Schedule III. It states in its proviso that if any combination does not fall under Schedule III, then the application under the green channel notice given and the approval granted under this regulation shall be void ab initio. The green channel notification is subject to Regulation 11 of the Competition Commission of India (Procedure regarding the transaction of business relating to competition), Regulation 2011, which imposes filing fees of Rs. 20,00,000/- (Twenty Lakhs only). Additionally, for transactions and combinations that use the ‘Green channel method’ for CCI approval, the required 30-day working period under the combination regulation does not apply.
The specimens under Schedule III provide that there should not be any vertical, horizontal, or complementary overlaps in the market line. The parties need to check the same. The parties are not only burdened with assessing the overlaps between the merging parties but also assessing other organizations that may directly or indirectly control or hold the shares. These entities include any entity that (i) has a shareholding of 10% or more, directly, or indirectly, (ii) has any additional right or ability that is not available to other shareholders, (iii) holds the right to recommend an observer or director in another enterprise. After the assessment under Schedule III is complete, the entities need to self-declare under Schedule IV that the combination under Schedule III does not have any vertical, horizontal, or complimentary overlaps; the combination will not cause any appreciable adverse effect in the competition in India and; there is no misstatement or omission of any material information about the combination in the form submitted.
Critical Analysis of the Green Channel Mechanism
Application through the green channel is a big task for the entities, as they will have to deploy huge funds, and highly qualified people with the technicalities of economics and law to analyse all the possible relevant markets. However, the amount of fee payable when applied through the green channel is Rs. 20,00,000/- (twenty lakh only), which is much less than the application through Form II. The entities are burdened with the responsibility to ensure that there are no vertical, horizontal, or complementary overlaps. Though vertical and horizontal overlaps are comparatively easier to asses, the complementary overlaps are still not so unambiguous.
The CCI does give the entities the right to be duly heard before arriving at a finding that the combination does not fall under Schedule III and/or the declaration filed under Schedule IV is incorrect. If the parties have finished the transaction or combination, proceedings under Section 43A of the Act are applicable. The parties must strictly adhere to the provisions to provide any information to the CCI regarding the transaction or combination. If they produce false information, the guilty party is subject to a fine under Section 44 of the Competition Act, that cannot be less than Rs 50,00,000 (Rupees Fifty Lakhs Only) and cannot exceed Rs 1,00,00,000 (Rupees One Crore Only). In violation of Section 43A, the parties may be fined up to the value of the transaction’s assets or 1% of turnover, whichever is higher, if they complete the combination or transaction without the board’s approval. Trian Partners AM Holdco, Ltd. and Trian Fund Management, L.P.,[1] (collectively, Trian) were fined by the Commission this year for gun jumping in a green channel notification. Since there were no overlaps in the activities of Trian and Invesco Limited, the CCI approved a green channel notification submitted by Trian for the purchase of shares in Invesco Limited. Two of Trian’s founding partners were appointed directors on the board of Invesco Limited before filing the green channel notification, which led the CCI to later discover that the proposed combination had been implemented before its deemed approval. The fine was INR 2 million, or about $0.02 million or €0.02 million.
The new Amendment has inserted a transparency element in the merger filing procedure. The parties will now have to submit a 500-page summary of the combination containing the full text of every order that the CCI issued in that particular sector or industry, detailed disclosure of all rights resulting from the combination, information on all potential overlaps, detailed information of the last five years about the industry or sector where the combination occurs, details of all the parties of to the merger or acquisition, and the demarcated relevant markets. The summary will be hosted on the website of the CCI. This disclosure will help any stakeholder in the market to provide their comments on the combination. This procedure should also be used where notice is given through the green channel, based on how crucial the merger or acquisition is. The entities that undergo major acquisitions that could affect the economy of the nation in any way are not usually approved instantly through the green channel.
Progress of the Green Channel
The ‘Green Channel’ mechanism for notification to the CCI about the mergers and acquisitions was brought to fulfil three major objectives. Firstly, it aimed to deliver an efficient and trustworthy review of combination cases. Secondly, to create a balance between the enforcement and cooperative functions. Thirdly, to create a thriving and business-friendly economy. The CCI has also extended its arm of help to every such entity that faces doubts regarding filing and the procedure by giving the option of utilizing a non-binding pre-filing consultation (“PFC”). The parties can use this facility to consult with Commission officers about whether the proposed transaction can satisfy the criteria for the Green Channel route. Investment holding companies, alternative asset management firms, life insurance services, pharmaceutical firms, the airport services sector, security firms, and cash services firms are just a few of the industries in which the Green Channel has been registered. On October 3, 2019, the CCI received the first Green Channel combination submitted undersubsection (2) of Section 6 of the Competition Act, 2002 (“Act”), read in conjunction with regulations 5 and 5A of the Combination Regulations. The announcement concerned the purchase of Essel Mutual Fund (Essel MF), a mutual fund registered by the SEBI (Mutual Funds) Regulations, 1996, by a company affiliated with the Sachin Bansal Group. To date, the Commission has received 52 cases under the scheme. In 2021-22, a total of 24 notices were filed through the Green Channel route, i.e., one out of every four notices filed with the Commission.[2] This route has seen an increasing trend from ~19% in FY 2020-21 to ~27% in FY 2021-22.[3]
Conclusion
The learned framers of the ‘Green Channel’ have considered all plausible drawbacks of this mechanism and have tried to eliminate all possible risks. This provision imposed a non-mandatory obligation for large entities to maintain a robust economics and law department, that would investigate, analyse, and bring to the knowledge of the entity all the relevant markets that the entity operates on. All the relevant markets of the merging firms and the shareholding entities are to be analysed. The progress of the Green Channel has further fostered the economic development of the nation by giving a strong impetus to the ease of doing business.
[1] Trian Partners / Trian Fund Management, Combination Registration No. C-2021/01/810.
[2] ICLG, Merger Control, <https://iclg.com/practice-areas/merger-control-laws-and-regulations/india#:~:text=In%202021%E2%80%9322%2C%20a%20total%20of%2024%20notices%20were%20filed%20through%20the%20Green%20Channel%20Route%2C%20which%20is%20one%20out%20of%20every%20four%20notices%2>, (last visited, 22nd December, 2023).
[3] Competition Commission of India, Annual Report 2021-22, [Mar 31, 2022], <https://www.cci.gov.in/public/images/annualreport/en/annual-report-2021-221671704224.pdf> accessed 27 August 2023.