Regulation 5 - Form of notice for the proposed combination - CCI (Procedure In Regard To The Transaction Of Business Relating To Combinations) Regulations, 2011

5. Form of notice for the proposed combination.- (1) Any enterprise which proposes to enter into a combination shall give notice of such combination to the Commission in accordance with sub-section (2) of section 6 of the Act and these regulations. 1 [ (2) The notice under sub-section (2) of section 6 of the Act, shall ordinarily be filed in Form I as specified in schedule II to these regulations, duly filled in, 7 [ **** ] and accompanied by evidence of payment of requisite fee by the parties to the combination. ] 2 [ (3) Notwithstanding anything contained in sub-regulation (2) and without prejudice to the provisions of sub-regulation (5), the parties to the combination may, at their option, give notice in Form II, as specified in schedule II to these regulations, preferably in the instances where- (a) the parties to the combination are engaged in production, supply, distribution, storage, sale or trade of similar or identical or substitutable goods or provision of similar or identical or substitutable services and the combined market share of the parties to the combination after such combination is more than fifteen percent (15%) in the relevant market ; (b) the parties to the combination are engaged at different stages or levels of the production chain in different markets, in respect of production, supply, distribution, storage, sale or trade in goods or provision of services, and their individual or combined market share is more than twenty five percent (25%) in the relevant market. ] 5 [ (3A) The parties to the combination shall give notice in Form I or Form II, as the case may be, in accordance with the notes to Form I and Form II issued by the Commission and published on its official website, from time to time. ] (4) Where in the course of inquiry, it is found by the Commission that it requires additional information, the Commission may direct the parties to the combination to file such additional information: Provided that the time taken by the parties to the combination in filing such additional information shall be excluded from the period provided in 9 [ sub-section (2A) of section 6 of the Act, ] sub-section (11) of section 31 of the Act and sub-regulation (1) regulation 19 of these regulations. (5) Having due regard to the provisions of sub-regulations (2) and (4), in cases where the parties to the combination have filed notice in Form I and the Commission requires information in Form II to form its prima facie opinion whether the combination is likely to cause or has caused appreciable adverse effect on competition within the relevant market, it shall direct the parties to the combination to file notice in Form II as specified in schedule II to these regulations: Provided that the fee already paid by the parties to the combination while filing notice in Form I shall be reduced from the fee payable for filing notice in Form II: 3 [ Provided further that the time period mentioned in sub-section (2A) of section 6 of the Act, sub-section (11) of section 31 of the Act and sub-regulation (1) of regulation 19 of these regulations shall commence from the date of receipt of notice in Form II. ] (6) If the requisite details are not available for any of the columns in Form I or Form II, the date on which they may be submitted should be clearly indicated against those columns, by the parties to the combination: Provided that the time taken by the parties to the combination to submit the requisite details shall be excluded from the period provided in 10 [ sub-section (2A) of section 6 of the Act , ] sub-section (11) of section 31 of the Act and sub-regulation (1) of regulation 19 of these regulations. (7) The reference to the 'board of directors' in clause (a) of sub-section (2) of section 6 of the Act, shall mean and include,- (a) the individual himself or herself including a sole proprietor of a proprietorship firm; (b) the karta in case of a Hindu Undivided Family (HUF); (c) the board of directors in case of a company 11 [ **** ] ; (d) in case of a corporation established by or under any Central, State or Provincial Act 12 [ **** ] or an association of persons or a body of individuals, whether incorporated or not, in India or outside India or anybody corporate incorporated by or under the laws of a country outside India or a cooperative society registered under any law relating to cooperative societies or a local authority, the person or the body so empowered by the legal instrument that created the said bodies; (e) in the case of a firm, the partner(s) so authorized; (f) in the case of any other artificial juridical person not falling within any of the preceding sub-clauses, by that person or by some other person competent to act on his behalf. (8) The reference to the 'other document' in clause (b) of sub-section (2) of section 6 of the Act shall mean any binding document, by whatever name called, conveying an agreement or decision to acquire control, shares, voting rights or assets : Provided that if the acquisition is without the consent of the enterprise being acquired, any document executed by the acquiring enterprise, by whatever name called, conveying a decision to acquire control, shares or voting rights shall be the 'other document': 8 [ Provided further that where a public announcement has been made in terms of the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 2011, for acquisition of shares, voting rights or control, such public announcement shall be deemed to be the other document ] 4 [ (9) Where, in a series of steps or individual transactions that are related to each other, assets are being transferred to an enterprise for the purpose of such enterprise entering into an agreement relating to an acquisition or merger or amalgamation with another person or enterprise, for the purpose of section 5 of the Act, the value of assets and turnover of the enterprise whose assets are being transferred shall also be attributed to the value of assets and turnover of the enterprise to which the assets are being transferred. ] ************** NOTES:- 1. Substituted vide F.No.3-1/Amend/Comb. Regl./2012/CD/CCI dated 23-02-2012 before it was read as, (2) The notice under sub-section(2) of section 6 of the Act, shall ordinarily be filed in Form I as specified in schedule Il of these regulations duly filled in, verified and accompanied by evidence of payment of requisite fee by the parties to the combination including the instances where (a) none of the parties to the combination are engaged in the production, supply, distribution storage, sale or trade of similar or identical or substitutable goods or provision of similar or identical or substitutable services, or the parties to combination are not engaged at different stages or levels of the production chain in different markets, in respect of production, supply, distribution, storage, sale or trade in goods or provision of services in which another party to the combination is engaged; (b) the parties to the combination are predominantly engaged in exports of goods or services from India and continue to be predominantly engaged in exports of goods or services from India after the combination takes effect: Provided that the market share of the combined entity is less than fifteen percent (15%) in the relevant market in India. Explanation: A party to the combination shall be deemed to be predominantly engaged in export of goods or services from India if at least seventy five percent (75%) of the turnover of the party to the combination is derived from exports out of India (c) an acquisition or acquiring of control over an enterprise is by a liquidator, administrator or receiver appointed through court proceedings or through any scheme approved under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 or under the Sick Industrial Companies (Special Provisions) Act, 1985 or any other modification or re-enactment of the law; (d) an acquisition results from a gift or inheritance; (e) an acquisition is of a trustee company or arises from a change of trustees of a mutual fund established under the Securities and Exchange Board of India (Mutual Fund) Regulations 1996, as amended from time to time; (f) the parties to combination are engaged in production, supply, distribution, storage, sale or trade of similar or identical or substitutable goods or provision of similar or identical or substitutable service and the combined market share of the parties to the combination after such combination is less than fifteen percent (15%) in the relevant market ; (g) the parties to combination are engaged at different stages or levels of the production chain in different markets, in respect of production, supply, distribution, storage, sale or trade in goods or provisions of services, and their individual or combined market share is less than twenty five percent (25%) in the relevant market. 2. Substituted vide F.No.3-1/Amend/Comb. Regl./2012/CD/CCI dated 23-02-2012 before it was read as, (3) Notwithstanding the provisions of sub-regulation (2), the parties to the combination may, at their option, annex additional supporting documents. If any, with Form I or file notice in Form II as specified in schedule Il of these regulations. 3. Substituted vide F.No.3-1/Amend/Comb. Regl./2012/CD/CCI dated 23-02-2012 before it was read as, Provided further that the time taken by the parties to the combination in filing notice in Form II shall be excluded from the period provided in sub-section (11) of section 31 of the Act and sub-regulation (1) of regulation 19 of these regulations. 4. Inserted vide F.No.3-1/Amend/Comb. Regl./2012/CD/CCI dated 23-02-2012 5. Inserted vide F. No. CCI/CD/Amend/Comb.Regl./2015 dated 01-07-2015 6. Omitted vide F. No. CCI/CD/Amend/Comb.Regl./2015 dated 01-07-2015 before it was read as, the Central Government or State Government or 7. Omitted vide F.No. CCI/CD/Amend/Comb.Regl./2016 dated 07-01-2016 before it was read as, verified 8. Substituted vide F.No. CCI/CD/Amend/Comb.Regl./2016 dated 07-01-2016 before it was read as, Provided further that where such a document has not been executed but the intention to acquire is communicated to 6 [ **** ] a Statutory Authority, the date of such communication shall be deemed to be the date of execution of the other document for acquisition. 9. Inserted vide F. No. CCI/CD/Amend/Comb.Regl./2018 dated 09-10-2018 10. Inserted vide F. No. CCI/CD/Amend/Comb.Regl./2018 dated 09-10-2018 11. Omitted vide F. No. CCI/CD/Amend/Comb.Regl./2018 dated 09-10-2018 before it was read as, registered under the Companies Act, 1956 12. Omitted vide F. No. CCI/CD/Amend/Comb.Regl./2018 dated 09-10-2018 before it was read as, or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956)