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TMI Blog2019 (7) TMI 2006X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned order dated 16th June, 2016 informed the 'Informant' ('Appellant' herein) that as per provisions of the Act and the 'Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Regulations, 2011' ("Combination Regulations" for short), parties are required to notify a combination to the 'Commission' in Form I & II as applicable. 3. It was informed that these forms contain details/information for assessing the competition concerns, if any, from the perspective of appreciable adverse effect on competition in relevant market(s) inter alia in terms of factors listed out under Section 20(4) of the Act. Further, in terms of Regulation 13 (1B) of the 'Combination Regulations', a summary of the Combination is placed on the website of the 'Commission' for the information of general public. 4. It was further informed that the aforementioned Combination was approved by the 'Commission' on 17th September, 2015. Subsequently, on receipt of first application dated 23rd September, 2015, the 'Commission' considered the submission in its meeting held on 27th October, 2015 and w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o review information submitted at any time relating to the 'Shell-BG Combination'. 13. It was further submitted that the summary under Regulation 13(1B) of the 'Combination Regulations' is alleged to have been published without any disclosure of the 'Undisclosed Relevant Markets'. 14. With regard to different information given by the Appellant on 22nd September, 2015 onwards, it was submitted that the relevant activity has taken place by 'Shell-BG Combination' which was approved on 23rd December, 2015 but it has been made available on the website much later. 15. Learned counsel for the 'Commission' while challenged the maintainability of the appeal under Section 53B, also submitted that no case has been made out on merit. 16. Learned counsel appearing on behalf of the 2nd and 3rd Respondents submitted that the 'Commission' passed order under Section 31(2) of the Act on 17th September, 2015 and approved the acquisition of the entire share capital of 'BG by Shell', resulting in 'BG' becoming a wholly owned subsidiary of 'Shell' in accordance with law. 17. Further, it was submitted that the Appellant had fail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foreign institutional investor, bank or venture capital fund, referred to in sub-section (4), shall, within seven days from the date of the acquisition, file, in the form as may be specified by regulations, with the Commission the details of the acquisition including the details of control, the circumstances for exercise of such control and the consequences of default arising out of such loan agreement or investment agreement, as the case may be. Explanation - For the purposes of this section, the expression- (a) "foreign institutional investor" has the same meaning as assigned to it in clause (a) of the Explanation to section 115AD of the Income-tax Act, 1961(43 of 1961); (b) "venture capital fund" has the same meaning as assigned to it in clause (b) of the Explanation to clause (23 FB) of section 10 of the Income-tax Act, 1961(43 of 1961)" 21. From the aforesaid provisions, following facts emerge: i. Section 6 relates to 'Regulation of combinations'. Sub-section (1) of Section 6 prohibits a person or enterprise from entering into a combination which causes or is likely to cause an appreciable adverse effect on competition with the relevant market in India and if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich the details of the combination were published under sub-section (2). (4) The Commission may, within fifteen working days from the expiry of the period specified in subsection (3), call for such additional or other information as it may deem fit from the parties to the said combination. (5) The additional or other information called for by the Commission shall be furnished by the parties referred to in sub-section (4) within fifteen days from the expiry of the period specified in subsection (4). (6) After receipt of all information and within a period of forty-five working days from the expiry of the period specified in sub-section (5), the Commission shall proceed to deal with the case in accordance with the provisions contained in section 31." 23. From the aforesaid procedure, it is clear that where the 'Commission' is of the prima facie opinion that a combination is likely to cause, or has caused an appreciable adverse effect on competition within the relevant market in India then it is required to issue a notice to show cause to the parties to combination and further required to call for report from the Director General. 24. As per sub-section (2) of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h combination, it may propose appropriate modification to the combination, to the parties to such combination. (4) The parties, who accept the modification proposed by the Commission under subsection (3), shall carry out such modification within the period specified by the Commission. (5) If the parties to the combination, who have accepted the modification under subsection (4), fail to carry out the modification within the period specified by the Commission, such combination shall be deemed to have an appreciable adverse effect on competition and the Commission shall deal with such combination in accordance with the provisions of this Act. (6) If the parties to the combination do not accept the modification proposed by the Commission under sub-section (3), such parties may, within thirty working days of the modification proposed by the Commission, submit amendment to the modification proposed by the Commission under that subsection. (7) If the Commission agrees with the amendment submitted by the parties under subsection (6), it shall, by order, approve the combination. (8) If the Commission does not accept the amendment submitted under subsection (6), then, the parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trol or merger or amalgamation had not taken place and the parties to the combination shall be dealt with accordingly. (14) Nothing contained in this Chapter shall affect any proceeding initiated or which may be initiated under any other law for the time being in force." 28. If Section 6(2) is read with Section 31, then it is clear that in absence of prima facie case being made out that the combination has, or is likely to have an appreciable adverse effect on competition, the 'Commission' is bound to approve that combination under Section 31 of the Act. 29. On the contrary, on receipt of notice under Section 6(2), if the 'Commission' is of the prima facie opinion that the combination has, or is likely to have an appreciable adverse effect on competition, it is required to follow the procedure as laid down in sub-sections (2), (3), (4), (5) & (6) of Section 29 and if so necessary Section 30. 30. Therefore, we hold that for forming prima facie opinion as to whether the combination is likely to cause, or has caused an appreciable adverse effect on competition within the relevant market in India, the Commission is required only to go through the information given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction, the expression- (a) "dominant position" means a position of strength, enjoyed by an enterprise, in the relevant market, in India, which enables it to- (i) operate independently of competitive forces prevailing in the relevant market; or (ii) affect its competitors or consumers or the relevant market in its favour. (b) "predatory price" means the sale of goods or provision of services, at a. price which is below the cost, as may be determined by regulations, of production of the goods or provision of services, with a view to reduce competition or eliminate the competitors. [(c) "group" shall have the same meaning as assigned to it in clause (b) of the Explanation to section 5.]" 33. The violation of Section 4 (i.e. Abuse of dominant position) is completely different than the violation of Section 6(1) (i.e. combination is likely to cause or has caused an appreciable adverse effect on competition), therefore, while passing order under sub-section (2) of Section 6, the Commission cannot hold abuse of dominant position, though it may hold that the combination is likely to cause, or has caused an appreciable adverse effect on competition within the relevant market in In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 46 of the Act; (b) to adjudicate on claim for compensation that may arise from the findings of the Commission or the orders of the Appellate Tribunal in an appeal against any finding of the Commission or under section 42A or under sub-section (2) of section 53-Q of this Act, and pass orders for the recovery of compensation under section 53N of this Act. (2) The Headquarter of the Appellate Tribunal shall be at such place as the Central Government may, by notification, specify." 40. Section 53B deals with 'Appeal to Appellate Tribunal', which reads as follows: "53B. Appeal to Appellate Tribunal--(1) The Central Government or the State Government or a local authority or enterprise or any person, aggrieved by any direction, decision or order referred to in clause (a) of section 53A may prefer an appeal to the Appellate Tribunal. (2) Every appeal under sub-section (1) shall be filed within a period of sixty days from the date on which a copy of the direction or decision or order made by the Commission is received by the Central Government or the State Government or a local authority or enterprise or any person referred to in that sub-section and it shall be in such f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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