Proposed CCI norms to give regulator more control in M&A transactions

The formation of a governing board at the Competition Commission of India (CCI) and the merger of the Director General’s office into CCI under ‘Investigation Division’ are among new changes proposed as part of the Competition (Amendment) Bill 2020 introduced by the ministry of corporate affairs.

The governing board is expected to drive policy decisions and quasi-legislative functions.

The proposed changes are part of the government’s attempt to give CCI more powers to oversee mergers and acquisitions, particularly in the technology space.

The draft bill, which was placed in the public domain last week, also proposes financial independence for the department. 

The amendments are based on a report submitted by a 10-member Competition Law Review Committee formed in October, 2018.

The committee submitted its report to the minister of finance in July 2019.

The amendments also propose a “green channel” route for merger notification for automatic approval of certain combinations. This includes a merger of parties who do not provide similar or identical product or services. 

In the context of technology and new age markets, the amendments state that the provisions of the Competition Act 2002 are sufficient to address cases of “algorithmic collusion” where companies utilise data collected over a period of time to influence pricing and other factors. 

The draft also provides a list of factors that can be considered by CCI to determine whether an enterprise is in a dominant position. It also takes into account control over data as a factor to ascertain dominance. 

"The most wanted change is the introduction of the provision of settlement and commitment which will make the Indian Competition regime at par with mature jurisdictions. This will certainly help in reducing the litigation and will enhance the speedy recovery of penalties imposed," said GR Bhatia, partner at law firm L&L Partners.

The ministry has sought stakeholder submissions to the draft amendment act by March 6, 2020.