Tuesday, June 15, 2021
The Competition Commission of India’s (CCI) journey with “control” has been the subject of much discussion among competition law practitioners, businesses, and within the halls of the regulator’s office itself. As the new decade witnesses an increase in the reliance of technology as well as a consolidation in conventional industries, both catalysed by the Covid-19 pandemic, there is a corresponding increase in activity in the Indian merger market. It is therefore crucial for businesses contemplating mergers and/or acquisitions, to have a clear sense of the hurdles they need to cross, particularly if the merger activity in question is in the same or in a related industry. Since such activity may have an impact on competition in the market, the CCI would need to provide clarity on what constitutes control, and in which situations transacting parties are to approach the CCI. In addition, the CCI must be transparent in what factors it considers when assessing whether a control transaction causes anti-competitive effects. This paper proposes that the CCI provide a clear and concise list of scenarios which it considers as amounting to control, from the perspectives of both notifiability as well as from competitive effects and suggests a way forward for the CCI to resolve its control quandary.