Combination for the purposes of the Competition Act includes a merger or

Combination for the purposes of the competition act

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“Combination”, for the purposes of the Competition Act includes a merger or amalgamation between or among enterprises that exceed the ‘financial thresholds’ prescribed under the Competition Act. ii. Timeline for CCI notification in Case of Mergers In case of merger, Section 6 of the Competition Act requires the enterprises to notify the CCI of a combination within 30 calendar days of final approval of the proposal of merger or amalgamation by the board of directors of the enterprises concerned. Within 30 days of the notification to CCI, the CCI shall issue a prima facie opinion of whether there would be AAEC. CCI’s order dated August 14, 2012 in the matter of Aditya Birla Nuvo Limited (“ Order ”) suggests that the ‘final’ board approval would be the one where the swap ratio, the draft scheme, the valuation and the assets to be transferred amongst other things, are approved by the board. However, the Order does not clarify whether the 30 day time limit for notifying the CCI begins from the date of the last of the merging companies’ boards approving the merger or the first of such merging companies’ board of directors approving the merger. 87 iii. Compulsory waiting period for a Combination to take Effect The Combinations Regulations mandate CCI to form a prima facie opinion on whether a combination has caused or is likely to cause an AAEC within the relevant market in India, within 30 days of filing. The combination will become effective only after the expiry of 210 days from the date on which notice is given to the CCI, or after the CCI has passed an order approving the combination or rejecting the same iv. Trigger for CCI notification in Case of Merger If the combination exceeds the financial thresholds then the merger is subject to pre clearance of the CCI. Financial thresholds prescribed under the Competition Act for determining ‘combinations’ are as follows 88 : A merger or amalgamation where the transferor and transferee jointly have, or where the resulting entity has, (i) assets valued at more than INR 15 billion (~USD 250 million) or turnover of more than INR 45 billion (~USD 750 million), in India; or (ii) assets valued at more than USD 750 million in India and abroad, of which assets worth at least INR 7.5 billion (~USD 125 million) are in India, or, turnover more than USD 2,250 million in India and abroad, of which turnover in India should be at least INR 22.5 billion (~USD 375 million). A merger or amalgamation where the group 89 to which the resulting entity belongs, has (i) assets valued at more than INR 60 billion (~USD 1,000 million) or turnover of more than INR 180 billion (~USD 3,000 million), in India; or (ii) assets valued at more than USD 3 billion in the aggregate in India and abroad, of which assets worth at least INR 7.5 billion (~USD 125 million) should be in India, or turnover of more than USD 9 billion in India and abroad, including at least INR 22.5 billion (~USD 375 million) in India.
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