The year 2022 witnessed significant developments in the field of competition
law in India. The Competition Commission of India (CCI) efficiently approved
notified combinations within reasonable timelines, conducted impactful dawn
raids, issued noteworthy orders that garnered international attention, and
conducted market studies.
Extensive discussions took place regarding the expected amendments to the
Competition Act, 2002 (Act) in various settings, including conference rooms and
informal conversations. It is worth noting that the CCI has been unable to
achieve quorum for conducting formal business since the departure of Chairperson
Mr. Ashok Gupta on October 24, 2022. As a result, numerous deals worth billions
of dollars remain pending without approval.
The text refers to the Competition Amendment Bill, 2022, and the accompanying
report from the Parliamentary Standing Committee on Finance.
The introduction of the Competition (Amendment) Bill, 2022 (Bill) was the most
noteworthy development this year, as it proposes substantial changes to the Act.
The Parliamentary Standing Committee on Finance (SCF) has adopted the Bill and
proposed amendments. The Bill is expected to be presented in Parliament during
its upcoming session in February 2023.
The Bill suggests a global deal value threshold of INR 20 billion (approximately
USD 251 million / EUR 247 million) for transactions involving parties with
significant business operations in India. The SCF recommends that the Bill
include provisions outlining the method for determining the value of a proposed
transaction. It has been proposed that when evaluating a proposed transaction,
the assessment of "substantial business operations in India" should focus solely
on the target entity, rather than considering the presence of the parties
The Bill proposes to reduce the merger review period from 210 days to 150 days.
Additionally, if the Competition Commission of India (CCI) does not form an
opinion within 20 days, the merger will be deemed approved at a prima facie
stage. The current regulations grant the Commission a period of 30 working days
for the prima facie stage, without any provision for automatic approval during
this stage. The SCF has noted that the proposed reduction in timelines could
pose a burden to the CCI, based on feedback from practitioners and the CCI
itself. It is recommended that the current timelines for merger approvals remain
The Bill introduces a provision for "settlement" and "commitment" to enable
parties being investigated for potential violations of vertical agreements or
abuse of dominance to propose commitments or reach a settlement with the
Competition Commission of India (CCI). Parties have the ability to provide
commitments prior to the submission of the investigation report by the Director
General (DG) to the Competition Commission of India (CCI).
Settlements can be reached after the Competition Commission of India (CCI) has
received the investigation report from the Director General (DG), but before the
CCI issues its final order. The Bill mandates the compulsory involvement of the
Director General (DG), relevant stakeholders, and third parties in submitting
objections and suggestions regarding commitment and settlement proposals.
The inclusion of cartels in settlement proposals has been recommended by the SCF.
It has been proposed that if the CCI rejects a settlement proposal, parties
should have the option to appeal to the appellate tribunal. However, if the
party accepts the commitment proposal, no appeal should be allowed to the
The SCF has noted that involving third parties in commitment and settlement
proposals can compromise confidentiality. Therefore, it suggests that the
decision to include third parties in the process should be at the discretion of
the CCI, rather than being mandatory as it currently is.
The Bill provides a clear definition of "hub and spoke" cartels and establishes
the framework for incorporating third parties that aid cartels without being
direct competitors. The SCF found the language of the Bill, which proposed a
presumption of illegality against third parties who "actively participated" in
cartel conduct, to be excessively severe. It recommended that the definition be
revised to include an element of intention, in order to address situations where
third parties may have unknowingly facilitated anti-competitive behaviour among
The Bill grants the DG the authority to question the legal advisors of the
individuals associated with the party under investigation, and to administer
oaths during the examination process. The Supreme Court of India (SCF) has
expressed its view that the proposed amendment has a broad scope.
It argues that the Director General (DG) or any investigative authority, like
the Competition Commission of India (CCI), should not be allowed to question
legal professionals or other privileged advisors, as this would violate the
principle of 'attorney-client privilege'. It is likely that if such a provision
were included, it could be deemed unconstitutional by the constitutional courts.
Gun jumping and the green channel are two concepts related to merger control in
competition law. Gun jumping refers to the premature implementation of a merger
or acquisition before obtaining the necessary regulatory approvals. This can
include actions such as transferring ownership or control of assets, or
The 'Green Channel' was implemented in August 2019, inspired by Indian customs
laws. It allows for expedited approval of mergers where the parties involved do
not have any horizontal overlaps, vertical relationships, or complementary
connections. In 2022, the Competition Commission of India (CCI) granted approval
to a total of 80 proposed combinations, with 25 of them being approved through
the green channel process.
This year, the Commission imposed penalties on Trian Partners AM Holdco, Ltd.
and Trian Fund Management, L.P. Trian, as a collective entity, was found to have
engaged in gun jumping in relation to a green channel notification. The
Competition Commission of India (CCI) had initially approved a green channel
notification submitted by Trian for the acquisition of shares in Invesco
This approval was granted based on the absence of any overlaps in the business
activities of Trian and Invesco Limited. The CCI found that the proposed
combination had been implemented prior to its deemed approval. This occurred
because two of Trian's founding partners were appointed as directors on the
board of Invesco Limited before filing the green channel notification. The
penalty imposed was INR 2 million, equivalent to approximately USD 0.02 million
or EUR 0.02 million.
The CCI fined Adani Green Energy Limited INR 500,000 (approximately USD 0.06
million / EUR 0.05 million) for engaging in gun-jumping during its acquisition
of S.B. Energy Holding Limited is a company. The CCI determined that a
contractual clause in a transaction document was excessive in relation to its
intended purpose of protecting the economic value of the target entity.
Additionally, the clause did not include measures to prevent the sharing of
competitively sensitive information before the CCI's approval of the
transaction. The case is important because the CCI has stated that standstill
covenants are acceptable if they are proportionate to the objective of ensuring
certainty in business valuation and do not interfere with the target entity's
ordinary course activities.
Following this case, the Competition Commission of India (CCI) has conducted
thorough examinations of standstill covenants in various other transactions. In
certain instances, the CCI has requested parties to provide a justification for
including such a clause. The CCI has gone as far as asking parties to submit
emails or other records pertaining to the objective of the clause.
Comprehensive Analysis of Select Mergers
The Competition Commission of India (CCI) has the authority to issue a
Show-Cause Notice (SCN) to parties involved in a combination if it believes that
it may result in a significant adverse effect on competition (AAEC) in India.
This notice serves to determine whether a Phase-II investigation should be
initiated. The CCI thoroughly examined two combinations this year.
Digital payments refer to the electronic transfer of funds between parties for
the purpose of making transactions.
The Competition Commission of India (CCI) issued a Show Cause Notice (SCN) to
PayU India, which is an indirect subsidiary of Naspers, a global consumer
internet company. The SCN was issued in relation to PayU India's intended
acquisition of IndiaIdeas.com Limited, an Indian digital payments platform known
The CCI expressed disagreement with PayU India's proposed definition of the
broad relevant market, which suggested that all online payment services made
in-store on an app or website should be considered part of the same relevant
market. The CCI identified two pertinent markets: (a) the market for online
payment aggregation services, which can be either recurring or standalone; and
(b) the market for 'Bharat Bill Payment Services,' which is an interoperable and
accessible bill payment ecosystem that operates through digital infrastructure
and a network of agents and bank branches.
The CCI determined that the merger did not pose any competitive issues in the
relevant markets. As a result, no further investigation or remedies were deemed
necessary. The transaction was cancelled because certain conditions precedent
were not met. The CCI order is noteworthy as it is the first instance where no
remedies, whether behavioural or structural, were mandated by the CCI following
the issuance of a Show Cause Notice (SCN).
The media and entertainment industries.
Culver Max Entertainment Private Limited (Sony), Bangla Entertainment Private
Limited (a wholly-owned subsidiary of Sony) (BEEPL), and Zed Entertainment
Enterprises Limited (ZED) (a competitor of Sony) have jointly filed a notice.
These companies are prominent operators of television channels and OTT video
services in India. The notice pertains to the amalgamation of ZED and BEEPL into
The CCI observed that television advertising has the greatest market reach in
India. The merged company would become the largest broadcasting company in
India, possessing around 92 television channels with significant market shares
in four market segments. The television industry in India includes various
genres such as Hindi general entertainment channels (GEC), Marathi GEC, Bengali
GEC, and Hindi films. The merged entity would possess the capacity and
motivation to raise prices for advertisers and viewers in the specified market
segments. The company could charge high prices and engage in differential
pricing and behaviour with Distribution Platform Operators, such as those
operating through cable or DTH.
The parties involved in the CCI responded to the SCN by offering to divest ZEE's
ownership in three Hindi-language channels. They also agreed not to sell these
channels to Star India or Viacom 18 Media, the two largest competitors in the
market segments. The CCI approved the amalgamation without a Phase II
investigation after accepting the remedy and considering the voluntary
Wide platform parity clauses are not advisable.
In 2020, the Competition Commission of India (CCI) began investigating
allegations of abuse of dominance by MakeMyTrip India Private Limited and Go-Ibibo,
which are the top online travel companies in India, collectively referred to as
MMT-Go. The allegations involve confidential exclusivity agreements between MMT-Go
and OYO, an Indian multinational hospitality chain.
These agreements stipulate that MMT-Go will offer preferential treatment to OYO
on its platform. Moreover, there were allegations that MMT-Go had engaged in
price parity agreements with its hotel partners, which restricted them from
offering rooms at lower prices on alternative platforms. The investigations were
initiated based on complaints filed by the Federation of Hotel & Restaurant
Associations of India and Treebo, a budget hotel brand.
The CCI determined that MMT-Go's wide parity obligations and exclusivity
conditions constituted abuses of dominance due to their unfair and
discriminatory nature. The CCI acknowledged that narrow parity could be
justified to address concerns of free riding, as hotels benefiting from the
investments made by online platforms could harm the business of MMT-Go and other
online travel agencies.  MMT-Go incurred a penalty of INR 2.23 billion,
equivalent to approximately USD 27 million or EUR 25.6 million. The CCI issued
directives that involved removing price and room availability parity
obligations, eliminating exclusivity conditions, and ensuring non-discriminatory
access of hotels to the MMT-Go platforms.
The CCI discovered that the commercial agreement between MMT-Go and OYO, which
involved a "refusal to deal," resulted in the removal of FabHotels, Treebo, and
other independent hotels from the platform. OYO incurred a penalty of INR 1.68
billion (approximately USD 20 million / EUR 18.96 million) due to the exclusive
agreements between MMT-Go and OYO.
In 2022, an investigation was conducted against BookMyShow, an online ticketing
platform. The purpose of the investigation was to examine allegations of abuse
of dominance by the platform, as well as exclusivity and refusal to deal
arrangements between BookMyShow and specific theatres/multiplexes .
CCI imposes penalty on Google.
In 2022, the CCI's imposition of monetary penalties and directions on Google in
two significant orders garnered significant media attention. The CCI has imposed
a provisional penalty of INR 9.36 billion on Google for allegedly abusing its
dominant position in relation to its Play Store billing system, policies, and
UPI application (GPay). This marks the first instance of an antitrust regulator
issuing a formal order regarding Google's exclusive use of its billing system
and service fee. The service fee was not deemed to be exploitative. The CCI has
potentially exceeded its authority by issuing broad ex ante directives that may
not be directly related to the subject matter of the investigation.
In a separate inquiry into Google's android ecosystem, the CCI imposed a
provisional penalty of INR 13.37 billion on Google for its abuse of dominance in
various markets related to the Android mobile device ecosystem. The CCI has
identified similar issues to the European Commission (EC) in the 2018 Google
Android decision. However, the CCI's directions are more intrusive compared to
the EC's decision.
Further advancements in the digital industry
Google is under investigation for allegedly imposing unfair and opaque revenue
generation terms in online digital advertising intermediation services. The
Competition Commission of India (CCI) is investigating Zomato Limited and Bundl
Technologies Private Limited (Swiggy) for allegations of price parity
arrangements, data masking, and platform neutrality. The CCI conducted raids on
the premises of various sellers on Amazon and Flipkart, investigating exclusive
vertical agreements with certain sellers on their platforms.
Dawn raids refer to surprise inspections conducted by regulatory authorities or
law enforcement agencies at the premises of companies or individuals suspected
of engaging in illegal activities.
Apart from the raids on Amazon and Flipkart, the CCI conducted four additional
raids on entities operating in various sectors in 2022.
In March, multiple raids were conducted on the facilities of at least four tyre
manufacturers due to allegations of engaging in cartel activities.
In April, raids were conducted at mining companies in West Bengal and Jharkhand
due to allegations of bid-rigging in coal mining tenders issued by Bharat Coking
Coal Limited, a public sector company.
In December, authorities conducted raids on small-scale steel companies in West
Bengal, Punjab, Tamil Nadu, and New Delhi due to allegations of price collusion
in the production of steel products used in construction.
In December, a raid was conducted at the premises of prominent cement companies
in Southern India to investigate potential violations of competition law.
Market studies and frequently asked questions (FAQs) updates.
The CCI published a market study in September 2022 on the Indian taxi and
cab-aggregator industry, specifically examining prominent cab aggregators like
Ola and Uber. A controlled experiment was conducted to investigate the dynamic
pricing strategies employed by cab aggregators. The report determined that surge
pricing is influenced by factors such as demand, supply, and potentially,
individual rider characteristics. According to the Report, transparency in the
algorithms and data processing practises of Cab Aggregators is necessary to
address the information imbalance between Cab Aggregators and their drivers.
The CCI released a market study on the 'Film Distribution Chain in India' in
October 2022. The major competition law issues pertaining to multiplexes, film
producers, and distributors include the identification of bargaining power
imbalance, lack of transparency in box office revenue collections, and the
virtual print fee acting as a barrier to entry for producers seeking to exhibit
their films in theatres.
The CCI proposed several significant recommendations, including the
implementation of customised agreements between producers and exhibitors based
on the content being presented, allowing multiplexes to negotiate deals,
ensuring fair and reasonable terms for producers regarding promotions,
eliminating trade restrictions in exhibition by multiplexes, and adopting a
standardised and audited box office monitoring system.
The 2020 'Market study on e-commerce in India' prompted an investigation into
the e-commerce platforms Amazon and Flipkart.
The CCI is anticipated to release a market study on the common ownership of
shares by private equity funds across various portfolio companies. The findings
of the CCI are anticipated to provide clarification on the issues related to
common ownership in portfolio companies within the same sector. India is among
the limited number of jurisdictions that mandate the notification of minority
acquisitions, which includes the acquisition of control in the target company,
as per a broad definition.
The CCI provides clarifications on procedural and legal aspects of Indian
competition law through the publication of 'Frequently Asked Questions' (FAQs)
on its website. In 2022, the FAQs were revised for the first time in five years,
incorporating several significant additions to the existing framework.
Revised Confidentiality Protocol
The CCI issued amendments to the Competition Commission of India (General)
Regulations, 2009 in April 2022. In enforcement proceedings, parties must
provide undertakings certifying that the disclosure of confidential information
or documents would result in commercial or competitive harm. Engaging in
deceptive activities can result in a fine of up to INR 10 million (approximately
USD 0.12 million / EUR 0.11 million). Additionally, the CCI has the authority to
withdraw the confidentiality status of relevant documents or information.
In the past, fines were not imposed and claims of confidentiality were accepted
The CCI has issued guidelines for establishing "confidentiality rings" in
accordance with international norms. These rings allow authorised
representatives of opposing parties in ongoing proceedings to access
confidential information and documents. Informants and third parties are
excluded from confidentiality rings, unless otherwise directed by the CCI.
The CCI is dedicated to actively addressing anti-competitive behaviour and
consistently exhibits a cooperative approach to reviewing mergers, while also
increasing scrutiny of transaction documents and enforcing merger regulations.
The decisions made by the organisation, particularly in the technology and
digital sector, have established new legal principles that are anticipated to
develop further in the future.
Enacting the Bill into law, while considering the recommendations of the SCF,
would enhance the sophistication of competition law enforcement in India.
- Competition Commission of India (Procedure in regard to the transactions of business relating to combinations) Regulations, 2011.
- Trian Partners / Trian Fund Management, Combination Registration No. C-2021/01/810.
- PayU Payments Private Limited, Combination Registration No. C-2022/04/920.
- Culver Max Entertainment Private Limited, Zee Entertainment Enterprises Limited, Bangla Entertainment Private Limited, and Essel Group Participants, Combination Registration No. C-2022/04/923.
- In Re: Federation of Hotel & Restaurant Associations of India and Ors v. Make My Trip India Pvt. Ltd, Case No. 14 of 2019 and 01 of 2020
- In Re: Vijay Gopal v. Big Tree Entertainment Pvt. Ltd and Ors., Case No. 46 of 2021
- In Re: Match Group, Inc. and Alphabet Inc. Google LLC and Ors, Case No. 14 of 2021.
- In Re: Umar Javeed and Ors v. Google LCC and Ors, Case No. 39 of 2018.
- Google Android, Case AT.40099.
- Digital News Publishers Association v. Alphabet Inc. and Others, Case No. 41 of 2021, The Indian Newspaper Society v. Alphabet Inc., and Others, Case No. 10 of 2022; News Broadcasters and Digital Association v Alphabet Inc. and Others, Case No. 36 of 2022.
- In Re: National Restaurant Association of India and Zomato Limited and Anr., Case No. 16 of 2021.