Background:
On March 31, 2022, the Competition Commission of India (CCI), in exercise of the powers conferred on it under Section 64 of the Competition Act, 2002 (Act), amended the Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Regulations, 2011, (Combination Regulations) and substituted the existing Form II with an updated Form.
A Form II is filed with the CCI where there may be inherent competition concerns due to the market positioning of the parties. Specifically,
- if the parties are engaged in the business of substitutable products/ services and their combined market share is more than 15%; and/ or
- if they are vertically related i.e., at different stages of the production chain of the same product/ service and their individual or combined market share is more than 25%.
Effective May 1, 2022, parties which cross these prescribed market share thresholds, will need to file their notification with the CCI as per the updated Form II.
Key Changes:
The CCI revised and updated the Form I in 2019 and published Guidance Notes for Form II in 2020. This year the CCI has streamlined Form II to bring it in line with its Form I approach. A quick snapshot of some key changes is provided below:
- Queries on complimentary linkages between parties to a combination, previously part of Form I alone have now been introduced in the updated Form II.
- A market concentration analysis based on four-firm concentration index (CR-4) i.e., the concentration ratio for the top four firms in a given relevant market has been introduced.
- Market facing information such as market share of parties, list of competitors, top suppliers and customers going back to a five-year period has now been introduced.
ELP Comment:
The updates being introduced to the Form II is reflective of the CCI's continuing endeavour to ease regulatory burden on the parties by allowing for a more practical filing under Form II. While the existing Guidance Notes for Form I will help parties filing an updated Form II, it would be interesting to observe if there is any specific area of the updated Form II where the CCI issues notices to parties seeking clarifications or additional information.
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