Competition Law Updates (India)

Revision of thresholds for triggering approval

The Competition Act prescribes that acquisition of one or more enterprises or merger or amalgamation of enterprises, which exceeds the threshold prescribed therein shall be a ‘Combination’ for the purposes of the Competition Act, requiring prior approval of the CCI prior to its implementation. With effect from 7 March 2024, these thresholds have been revised upwards. The below table outlines prior and revised thresholds:

Revision to thresholds for de minimis exemption

Even if a combination is covered by the thresholds above, prior notification is not required if the transaction falls within the de minimis exemption. The de minimis exemption has also been revised upwards and now if the target company in India, on a consolidated basis, has either assets of the value not exceeding INR 4.5 billion (previously INR 3.5 billion) in India or turnover not exceeding INR 12.5 billion (previously INR 10 billion) in India, the transaction will not require the prior approval of the CCI. The revised threshold is effective for two years until March 7, 2026.

Introduction of the Leniency Plus Framework

Following the amendment to the Competition Act in 2023, the CCI has from 20 February 2024, brought into effect the relevant provisions of the Competition Act relating to the ‘Leniency Plus’ regime, which incentivizes an applicant in an on-going case, to disclose information regarding another cartel which is unknown to the CCI, in exchange for further reductions in penalty in the existing case. The corresponding regulations i.e. Competition Commission of India Lesser Penalty Regulations, 2024 (“Regulations”) have also been notified.

Below is the summary of the key provisions of the leniency plus framework:

1. Reduction in penalty/Lesser Penalty Plus: Where a leniency applicant in the ‘first cartel’ subsequently makes a full, true and vital disclosure in respect of another or ‘second cartel’, such applicant is eligible for an additional reduction in penalty of up to 30% in the first cartel and a reduction of up to 100% in the second cartel, provided that such disclosure is sufficient to enable CCI to make a preliminary or prima facie determination of cartelization.
2. Applicability to Individuals and Facilitators: The benefits of a leniency application will extend to those individuals (directors, employees) who are involved in the first cartel and on whose behalf the application is filed. Further, a cartel facilitator i.e. a party that is not involved in identical or similar trades but participates or intends to participate in furtherance of the cartel, can also become an applicant.
3. Procedure: A lesser penalty plus/leniency application must include details of the (a) applicant, (b) ongoing matter, (c) newly disclosed cartel and (d) similarities in the ongoing matter and new cartel, as well as justify that the newly disclosed cartel is separate from the current case. The application can be filed only before the CCI receives the Director General’s (DG) investigation report in the ongoing case. Further, only the first applicant disclosing the information will be entitled to lesser penalty. Any subsequent applications will be considered only if CCI rejects the preceding application.
4. Rejection & Withdrawal: A leniency application may be rejected if an applicant fails to: (a) provide full, true and vital disclosure; or (b) comply with the conditions for grant of leniency or leniency plus; after such applicant is granted an opportunity of being heard. An applicant may also withdraw its leniency application before the investigation report is submitted to CCI. In such a case, the CCI may still however, use the information provided by the applicant, except the admission itself.
5. Confidentiality: The CCI and DG are required to maintain strict confidentiality of the identity of the applicant and information, documents and evidence submitted by the applicant unless (a) the applicant has provided a written waiver, (b) disclosure is mandated by law, or (c) there has been a public disclosure by the applicant. Further information can also be disclosed by the DG, without obtaining the applicant’s consent but after (d) recording its reasons in writing and (e) obtaining the CCI’s approval, if such disclosure is required for the purposes of the investigation.

Conclusion

The upward revision to the thresholds is industry friendly and a welcome step in view of India’s growing economy and the Indian government’s efforts to promote ease of doing business in India. The revisions would ensure that fewer M&A transactions will require prior CCI approval. However, it should be noted that the Competition (Amendment) Act, 2023, introduced a concept of “deal value” threshold, which requires any transaction having a deal value greater than INR 20 billion to obtain the prior approval of the CCI. The deal value threshold has not yet come into force, but once effective, it will apply irrespective of the de minimis exemption. Separately, the leniency plus regime, which is at par with global jurisdictions, will provide an additional avenue to parties to avail reduction in penalties, and should help in promoting a culture of proper governance and compliance.