CCI’s initiative on ease of doing businesses in India: Green Channel route for approval of mergers

The Competition Commission of India (CCI) received its 50th Green Channel filing in February 2022 since the inception of the concept on August 15, 2019.

Chairperson of the CCI Ashok Kumar Gupta had in his welcome address at the inauguration of the CCI Regional Office (South) in Chennai on February 26, mentioned that the Green Channel mechanism for automatic approvals is the first of its kind in the world. It has been hailed by stakeholders as being a progressive step towards ease of doing business.

Further, in the speech delivered at the United Nations Conference on Trade and Development (UNCTAD) Intergovernmental Group of Experts Meeting, the Chairperson said,

"...CCI has recently introduced a Green Channel, for an automatic approval of combinations. This is a first-of-its-kind, trust-based system, where notifiable transactions, having no overlaps are approved upon filing. It is expected to promote, a speedy, transparent and accountable merger review process, striking a balance between facilitation and enforcement, and upon creating a culture of voluntary compliance, that supports economic growth. Over the last year, the Green Channel route has gained traction, with one out of every five transactions, being filed under this route, demonstrating the stakeholders' confidence..."

A step towards ease of doing business

As part of its ongoing and regular efforts to make Mergers and Acquisitions (M&A) filings simpler and faster, the CCI had introduced an automatic system of approval for combinations under the Green Channel route. Under this process, a combination is deemed to have been approved upon filing of the notice in the prescribed format. This system seeks to significantly reduce the time and cost of transactions for parties seeking approval under the Competition Act, 2002.

Unique mergers filing system with instant approval

The Green Channel approval for combination filings in India is a unique approval process in comparison with mandatory notification jurisdictions globally. In legal terms, any combination or M&A deals compulsorily have to follow a suspensory period before consummation, subject to approvals by the competition regulator. By way of introduction of the Green Channel, the Commission has opened up the sphere of self-assessment by businesses of the proposed combination before filing the notification. As per Regulation 5A of the Competition Commission of India (Procedure in regard to the transactions of business relating to combinations) Regulations, 2011 (Combination Regulations), upon filing of a notice and acknowledgement thereof, the said proposed combination is deemed to have been approved by the Commission under sub-section (1) of Section 31 of the Act.

Facility to assess Green Channel

The Green Channel route has increased the self-assessment and compliance among the notifying parties. However, in case of doubt regarding the availability of the Green Channel facility, the Commission also provides notifying parties an option of availing a non-binding pre-filing consultation (PFC). This facility helps the parties discuss with the officers of the Commission whether the proposed transaction can meet the requirements of the Green Channel route.

It is pertinent to mention here that the 'deemed approval' granted under the Green Channel shall become void ab initio, if the Commission finds that the combination does not fall under Schedule III (criteria for availing Green Channel) and/or the declaration filed is incorrect. However, “the Commission shall give to the parties to the combination an opportunity of being heard before arriving at a finding that the combination does not fall under Schedule III and/or the declaration filed pursuant to sub-regulation (1) is incorrect."

Experience so far

The CCI received the first Green Channel combination filed under sub-section (2) of Section 6 of the Competition Act, 2002 (Act) read with regulations 5 and 5A of the Combination Regulations, on October 3, 2019. The notification related to the acquisition of Essel Mutual Fund (Essel MF), a mutual fund registered under the SEBI (Mutual Funds) Regulations, 1996 by an entity forming a part of the Sachin Bansal Group.

The sectors in which the Green Channel has been filed range from investment holding companies, alternative asset managing companies, life insurance services, pharmaceutical company, airport services sector, security services and cash services company to name a few. For instance, in the Adani-GVK airport deal^, Adani Airport Holdings said there was no overlap in the relevant market. Further, there are no vertical or complementary linkages between the activities of the parties in India.

From October 2019 to December 2019, a total of 25 combination notices were received by the CCI, out of which 5 were Green Channel ones. Further, from January 2020 to March 2020, the number of Green Channel cases filed was 5 out of the 23 notices filed. Further, in January 2021, the number of Green Channel notices received accounted for 57% of the total notices received. The CCI has approved 50 Green Channel cases so far. In light of the COVID-19 pandemic, the ease of approval provided by the Green Channel route might be re-assuring to many sectors, especially the healthcare sector.

Conclusion

In view of the foregoing, we may conclude that by introduction of the Green Channel mechanism, CCI has taken a revolutionary decision in boosting the ease of doing business. The balance between facilitation and enforcement creates a culture of voluntary compliance that supports economic growth. Further, parties wishing to avail the Green Channel facility are also provided pre-filing consultation to assess and determine whether their combination is eligible.

Anuj Verma and Ikleen Kaur are Deputy Director (FA), and Research Associate (Law) at the Competition Commission of India respectively.