Jumping the Gun: A legal vacuum in the competition law in India?

By – Asmita Narula and Jane Kapai

Table of Contents

Introduction

The term ‘Gun Jumping’ has found a critical place in competition law and has emerged as a compliance concern globally, especially in the context of mergers and acquisitions, with regulators seeking to ensure that competitive dynamics are preserved until approval while allowing businesses sufficient scope for due diligence and transaction planning. In legal parlance, Gun Jumping refers to the early implementation of a transaction before receiving regulatory approval from competition authorities, undermining the integrity of market competition, potentially harming consumer interests and competitive dynamics. The potential negative consequences of Gun Jumping necessitates laying down of clear and unambiguous objective standards for compliance, providing businesses with certainty while safeguarding competitive markets. 

This article explores the Gun Jumping framework in India under the Competition Act, 2002 and its enforcement challenges, drawing on cross-jurisdictional best practices to provide a comparative perspective, and highlighting how clearer standards and structured guidance could enhance predictability and compliance for businesses, while safeguarding market competition.

Meaning of ‘Jumping the Gun’ or ‘Gun Jumping’

‘Jumping the Gun’ or ‘Gun Jumping’ refers to a situation where someone has acted prematurely or before the right time. The idiom has originated from track and field races – when a runner starts running before the gun, which is used to signal the start of the race, goes off. In context of competition law, it refers to premature implementation of a combination by the parties involved, before receiving approval from the competent authority, which is a significant anti-trust issue and needs to be regulated.

Gun Jumping under the Competition Act, 2002

Under the Indian law, the Competition Act, 2002 (“the Act”) was enacted to prevent practices having an adverse effect on competition, to promote and sustain competition, protect the interests of the consumers and ensure freedom of trade by the market participants. The Act prohibits abuse of dominant position and prohibits anti-competitive agreements. Additionally, it provides for regulation of combinations¹ i.e., mergers and acquisitions, to ensure that there is no adverse effect on the competition in the Indian market.

The regime of combination under the Act is a mandatory notification regime, which essentially means that a transaction which meets the threshold (asset or turnover) stipulated under Section 5 of the Act and does not fall under any of the available exemptions, is required to be notified to the Competition Commission of India (“CCI”) under Section 6 of the Act, whether or not there is any appreciable adverse effect (“AAEC”) on the competition in India.

The Act does not define Gun Jumping however, the notion is implied under Section 6(2A) read with Section 6(2) of the Act, popularly known as a standstill obligation, the violation of which attracts penalty under Section 43A of the Act. Section 6(2) of the Act provides that an enterprise, which proposes to enter into a combination, is required to give notice to the CCI, disclosing the details of the proposed combination within 30 days of the execution of any agreement or other document for acquisition, which is known as a ‘trigger event’. Section 6(2A)² of the Act provides that no combination shall ‘come into effect’ until 150 days³ have lapsed from the day on which the notice was given to the CCI, or the CCI has approved the combination under Section 31⁴, whichever is earlier.

In view of Section 6(2A) read with Section 6(2) of the Act, Gun Jumping has been defined by the CCI as an action pursuant to a proposed combination having the effect of consummating the proposed combination or any part thereof without the express or implied approval of the CCI⁵.

Section 43A of the Act prescribes the extent of penalty that can be levied for failure to file notice, which may extend up to 1% of the total turnover or assets of the combination, whichever is higher. The CCI has the discretion to consider the conduct of the parties and circumstances of the case to arrive at an appropriate amount of penalty⁶.

Forms of Gun Jumping

Gun Jumping can have two forms – procedural and substantive. Procedural Gun Jumping is the failure to give the required notice of a combination within the time period stipulated under Section 6(2) of the Act, or giving the notice after consummation of the combination, or the lapse of the specified time period. Substantive Gun Jumping refers to the consummation of a combination, either in whole or in part, before the express or implied approval of the CCI, as provided under Section 6(2A).

Objective and Rationale behind Gun Jumping

The CCI has consistently held that the basic objective behind the introduction of standstill obligations contained in Section 6(2A) of the Act is to ensure that the parties to a combination compete as they were competing before the initiation of the combination process till it is reviewed for any AAEC by the CCI and is approved. The rationale is that if the parties stop competing as before, the resulting adverse effect on competition in the interim period cannot be restored in case the CCI does not approve the combination or approves it with modifications.

Even though the Act penalises Gun Jumping and provides a certain level of safeguard against it, there are two aspects which are in particular ambiguous – first, the Act does not define the ‘trigger event’ which triggers the obligation to file a notice under Section 6(2) of the Act; and second, the term ‘come into effect’ has not been defined under the Act, making it unclear as to when a combination actually comes into effect for the purposes of Section 6(2A) of the Act. This ambiguity gives rise to uncertainties and difficulties in compliance, exposing the parties, who are entering into a combination, to imposition of penalties for conduct which they may believe to be within the permissible parameters.

The CCI had sought to remove the ambiguity qua the trigger event under Section 6(2) of the Act by way of Regulation 5(8) of the CCI (Procedure in regard to the transaction of business relating to combinations) Regulations, 2011⁷, which defines the term ‘other document’ as follows:

1. any binding document, by whatever name called, conveying an agreement or decision to acquire control, shares, voting rights or assets. 
2. in case the acquisition is without the target’s consent, it will mean any document executed by the acquirer, by whatever name called, conveying a decision to acquire control, shares or voting rights. 
3. where a public announcement has been made in terms of the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 2011, for acquisition of shares, voting rights or control, it will be such public announcement.

Subsequently, the said Regulations was repealed by the CCI (Combinations) Regulations, 2024, whereby inter alia Regulation 5 was amended, including removal of sub-section (8)⁸.

In this context, it is crucial to analyse the various decisions of the CCI to understand how these ambiguities have been dealt with.

Judicial interpretation by the CCI

The CCI has interpreted the words ‘proposes’ and ‘proposed’ used in Section 6(2) of the Act in Baxalta⁹. The CCI noted that the language of the provision implies that a combination being notified should be ‘proposed’ at the time of filing the notice and it is no longer ‘proposed’ if it is given effect to at the time of filing. These words contained in Section 6(2) of the Act have to be read in context of Section 6(2A) of the Act. If the parties are allowed to give effect to the proposed combination either before or after filing of the notice under Section 6(2) of the Act but before the expiry of the period stipulated under Section 6(2A) of the Act, it will amount to a violation of Section 6(2) of the Act.

It was argued by the Acquirer that there was no violation as the notice was filed within 30 days of the execution of the Global Separation and Distribution Agreement (GSDA) and it was under a bona fide belief that the trigger event for giving the notice of the transaction in India would be the execution of the stipulated local implementation agreement and not the GSDA. The CCI held the GSDA to be a binding document under Section 6(2) of the Act and thus, the notice had to be filed within 30 days of execution of the same.

In SCM Soilfert Limited & Anr. v. Competition Commission of India¹⁰, an appeal was filed against the order passed by the CCI imposing penalty under Section 43A of the Act¹¹. While deciding the appeal, the Competition Appellate Tribunal dealt with the scope and ambit of the term ‘other document’ contained in Section 6(2) of the Act. The CCI held that the term ‘other document’ will cover any document executed to acquire the shares¹². While interpreting the two provisions, the CCI also noted that the language of Section 6(2) and 6(2A) of the Act supports the premise of prior notification i.e., the notice has to be ex-ante. The findings of the Competition Appellate Tribunal have been upheld by the Supreme Court¹³.

The CCI has dealt with whether a refundable deposit would be considered as a pre-payment of consideration for the purpose of deciding if the combination was part-consummated before the notice or not in Hindustan Colas Private Limited¹⁴, where the Acquirer had paid money on the date of signing of the Sale and Purchase Agreement (SPA), which as per the Acquirer was not a pre-payment of consideration but a refundable deposit in good faith, not leading to any benefit or control to the Acquirer, and it only showcased its commitment towards the combination. The CCI reiterated its earlier finding that the standstill obligation of the parties to a combination is the cornerstone of ex-ante combination regulation. The CCI held that if a party is permitted to consummate a combination (or part thereof) before or after giving notice but without waiting for the expiry of the period under Section 6(2A) of the Act as long as notice is filed within time, it may have an impact similar to consummation of the combination itself.

The CCI observed that the pre-payment of price, whether refundable or non-refundable, may have several competition distorting effects. Whether any party benefitted from it or not and whether there were any commercial exigencies is not relevant. Some of these effects, as noted by the CCI, are as follows – 

1. Strategic advantage for the Acquirer,
2. Reduction in the incentive and will of the target to compete,
3. Permitting access to the target’s confidential information, and
4. Creation of a tacit collusion adversely affecting the competition.

UltraTech Cement: Timing and Integration Concerns

In UltraTech Cement Limited¹⁵, the CCI held that Section 6(2) of the Act stipulates that the parties cannot take any step towards consummation during the period leading to the filing of the notice and Section 6(2A) mandates that the parties have to observe standstill obligations during the review period as well. 

The CCI also observed that the timing of the alleged conduct is not crucial and what is crucial is whether the alleged conduct has the effect of consummating a combination (or any part thereof) or not. At the stage of negotiations, the parties cannot be permitted to enter into cooperation on any commercial, financial or marketing aspect, leading to integration of their operations, as it may result in the parties not acting independently which they are required to do till the combination is approved. Any activity or action, even if it occurs prior to the execution of a definitive agreement, which may reduce or have the potential to reduce the degree of independence or the incentives of the parties to compete, may be considered to be in contravention of Section 6(2A) of the Act.

Bharti Airtel: The Inherence–Proportionality Test (IPT)

The CCI laid down the basis of examining a contravention in Bharti Airtel Limited¹⁶ – (a) whether the parties have ceased to compete as they were competing earlier, or (b) whether they have ceased to act independently pursuant to the transaction. The CCI also laid down the Inherence Proportionality Test (“IPT”) while dealing with situations where an Acquirer may impose customary standstill and interim arrangements on the target. It was held that in such cases, it is the responsibility of the Acquirer to ensure that the form and scope of such standstill or arrangement is inherent and proportionate to the objective of ensuring certainty in business valuation and preservation of the same and that it does not violate the standstill obligations as envisaged in the Act. The CCI recognised some activities and / or actions, which are typically found to be in nature of premature integration and coordination i.e., Gun Jumping – 

1. acquisition of beneficial ownership
2. acquisition of operational control
3. sharing of competitively sensitive information on price, sales, etc.
4. exercise of voting rights
5. influencing the strategic decision making of the merging party contractually by virtue of clauses like non-compete, part payment of consideration, sharing of profits, etc.
6. interfering with the business of the other party by taking decisions on their behalf or influencing decisions over prices, consumers, customers, advertisement and marketing, business and sales policy
7. allocating customers/suppliers or the development of joint strategies
8. appointment of directors on the merging party’s board
9. integration of sales force
10. actual transfer of shares or assets
11. interrupting investments or sales by being influenced by the other merging party indulging into any conduct or activity which cannot be reversed at a later time

Adani Green Energy: Expanding the IPT Framework

In the year 2021, in the proceedings under Section 43A of the Act against Adani Green Energy Limited¹⁷, the CCI observed that the issue of standstill obligations is very broad and can include in its ambit a wide diversity of activities and actions, in addition to the ones already dealt with by the CCI till then. The CCI considered its earlier decisions in Bharti Airtel Limited¹⁸ and Hindustan Colas Private Limited¹⁹ and held that these decisions, by implication, bring out the test conditions for determining when a combination can be deemed to have ‘come into effect’ for the purposes of Section 6(2A) of the Act. The alleged conduct or arrangement needs to be examined in terms of

1. reduction in competition intensity test;
2. infringement with ordinary course of activities test; and 
3. likelihood of causing potential competition distortions.

In this case, the subject matter was one of the clauses, which inter alia allowed discussion of the ongoing business operations of the target (and its subsidiaries) and allowed the Acquirer to give inputs thereon, which had to be taken into account by the target. The Acquirer took the shelter of the IPT laid down in Bharti Airtel Limited²⁰ by the CCI to inter alia argue that the clause only facilitated sharing of information for the purpose of monitoring and preserving the target’s economic value and the independence would not be compromised. According to the Acquirer, the CCI ought to have considered the intent behind the clause and should have struck a balance between prohibiting Gun Jumping and the legitimate reasons for sharing of information.

The CCI observed that certain exchange of information is inherent in the very process of mergers and acquisitions but, the nature and scope of information to be exchanged varies with the stage of the process, the extent of integration envisaged, and the nature of businesses proposed to be integrated. However, the exchange of information can also have the effect of leading a combination to ‘come into effect’. In fact, the Competition Compliance Manual²¹ issued by the CCI specifically refers to it and states that pre-transaction due diligence as well as a certain level of post-signing integration planning may lead to substantive Gun Jumping.  It also brings out some of the protocols that can help mitigate the risks of Gun Jumping.

The findings of the CCI can be summarized as follows:

1. The onus to prove and ensure that the action or agreement under review is inherent and proportionate to the legitimate business objectives is on the parties to a combination.
2. The parties can put in place a system of safeguards commensurate with the potential gun-jumping concerns, which may arise. For the safeguards to be effective, various aspects, ranging from constitution to rules of engagement, need to be expressly laid down and complied with in letter and spirit.
3. Certain actions and / or arrangements can have both the aspects i.e., inherence to the legitimate objectives of the parties and raising concerns of Gun Jumping, which need to be examined in terms of the IPT framework.
4. The intent of the parties and the actual or potential effects of the action or conduct or arrangement are relevant considerations.

The CCI’s ruling in Adani Green Energy Limited²² exposes preparatory actions and conduct to penalties and it considers both intent and actual or potential effects as relevant considerations. In Bharti Airtel Limited²³, intent was prioritised over the effect. Thus, even as on date, a consistent benchmark with respect to Gun Jumping has not been established by the CCI.

Is approval under Section 31 of the Act a mitigating factor?

Section 31(1) of the Act provides that the CCI shall approve the combination, including the combination in respect of which notice has been given under Section 6(2) of the Act, where it is of the opinion that the combination does not, or is not likely to, have an AAEC. As detailed above, Section 43A of the Act stipulates the penalty to be imposed in case of violation of Section 6(2) of the Act. The question which thus arises is whether the approval under Section 31(1) of the Act is a mitigating factor for the penalty which is imposed under Section 43A of the Act?

This question has been answered in SCM Soilfert Limited & Anr.²⁴, which has been upheld by the Supreme Court. The Tribunal has categorically observed that it is clear from a reading of Section 31(1) and Section 43A of the Act that these provisions operate in different fields. The CCI has the power to approve a combination under Section 31 of the Act where the combination does not, or is not likely to, have an AAEC but, it does not obliterate or condone the contravention / violation of Section 6(2) of the Act, for which penalty is imposed under Section 43A of the Act. The approval is thus not a mitigating circumstance and penalty is leviable even if the combination has no AAEC.

Is intentional breach / mens rea an essential element for the levy of penalty under Section 43A of the Act?

This issue has also been dealt with by the Tribunal in SCM Soilfert Limited & Anr.²⁵. The Tribunal has considered the issue whether the failure to give notice under Section 6(2) of the Act has to be intentional for the imposition of penalty under Section 43A of the Act i.e., whether mens rea is an essential ingredient for imposition of such penalty. The Tribunal has held that mens rea or intentional breach is not an essential element for the levy of penalty under Section 43A of the Act, which has been upheld by the Supreme Court²⁶. The use of the words ‘shall impose’ in Section 43A of the Act has a significant bearing on the interpretation of the said provision. The Act does not contemplate a wilful and mala fide failure. Failure simpliciter has penal consequences under Section 43A of the Act. The Tribunal has categorically observed that the CCI has a discretion to decide the quantum of the penalty based on the facts and circumstances of the case²⁷ however, it cannot exculpate the enterprise from the failure.

Recently, the words ‘the Commission shall impose … a penalty’ in Section 43A of the Act have been substituted with the words ‘the Commission may impose … a penalty’. Further, a proviso has been added which allows re-filing of the notice within 30 days of the order of the CCI without imposition of any penalty²⁸. 

In Cummins Inc.²⁹, the CCI reiterated that Section 43A of the Act makes it clear that its provisions get attracted if there is a failure to give notice, irrespective of whether it was inadvertent or intentional. The Acquirer referred to the amendment in Section 43A of the Act, as stated above. The CCI observed that even though the amendment was yet to be notified at that time, the CCI would continue to have power to impose penalty for non-compliance of Section 6(2) of the Act.

Cross Jurisdictional Guidance on Gun Jumping

The concept of Gun Jumping or consummating a combination before receiving regulatory approval has been a key area of focus for competition authorities globally. In recent years, regulatory bodies in the European Union and Brazil have given important decisions and issued crucial guidelines that shed light on the scope of standstill obligations in merger control regimes.

European Union

The European Union (“EU”) Commission has consistently adopted a restrictive yet principled stance when interpreting the scope of the standstill obligation under Article 7(1) of the EU Merger Regulation, 2004 (“EUMR”)³⁰.

In Ernst & Young P/S v. Konkurrencerådet³¹, the dispute was whether measures ancillary to a proposed merger, specifically the termination of a Cooperation Agreement could be caught by the standstill obligation. The Court emphasized that Article 7(1) of the EUMR³² must be interpreted narrowly. If standstill obligation is extended to transactions which do not themselves effect a change of control, it would unduly broaden the scope of the Regulation. The key principle established was that only those measures, which, in law or in fact, contribute to the actual change of control of the target undertaking, can be considered as ‘implementation’ within the meaning of Article 7(1) of the EUMR. Extending Article 7(1) of the EUMR to preparatory conduct would risk broadening the EUMR beyond its intended scope, particularly since other forms of anti-competitive behaviour can be scrutinised under provisions such as Article 101 of the Treaty on the Functioning of the European Union (“TFEU”)³³. The Cooperation Agreement was held to be preparatory in nature and thus, it did not constitute a change of control, thereby falling outside the scope of the standstill obligation under the EUMR.

The decision in Altice Europe NV v. Commission³⁴ provided a crucial refinement of this framework, focusing on contractual covenants in a Share Purchase Agreement (SPA). It was argued that such covenants merely gave it the possibility of exercising decisive influence and did not amount to an actual transfer of sole or absolute control. Relying on the decision in Ernst & Young³⁵, it was argued that these were preparatory measures, not implementation. The Court, however, clarified that the decisive criterion is not whether control has been exercised, or whether absolute control has been transferred, but whether the Acquirer has obtained the possibility of exercising decisive influence on a lasting basis. This possibility alone, even if not acted upon, constitutes implementation under Article 7(1) of the EUMR. As the relevant covenants granted the Acquirer immediate rights over the strategic decisions of the target, they were found to breach both the notification and standstill obligations. This decision was upheld in appeal however, the fine imposed was reduced.³⁶

Brazil

Under the Brazilian Competition Law (No. 12.529/2011), Article 88 §3³⁷ forbids consummation of mergers before the antitrust authority reaches a final decision, the penalty for which is nullity and imposition of a fine ranging from BRL 60,000.00 to BRL 60,000,000.00, depending inter alia on the economic condition, intent and bad faith of the parties involved and the anti-competitive potential of the transaction, without prejudice to the opening of an administrative proceeding against the involved parties. The intention is to preserve the competitive conditions among parties until a final decision is rendered³⁸.

The national competition regulator in Brazil is the Conselho Administrativo de Defesa Econômica (Administrative Council for Economic Defense) (“CADE”). The aforesaid provision is regulated by Article 108, §1 of CADE’s Internal Regulation (RiCADE)³⁹, which stipulates that merger notifications shall be filed preferably after the signature of the formal instrument binding the parties and prior to the consummation of any act in connection with the transaction. Article 108, §2 provides that the physical structures and the competitive conditions should remain unchanged until CADE’s final review. It prohibits any transfer of assets and any kind of influence by one party on the other and the exchange of competitively sensitive information other than what is strictly necessary for the execution of the formal instrument.

In the year 2016, CADE published the ‘Guidelines for the analysis of previous consummation of merger transactions’⁴⁰, which give effect to the objectives of a standstill obligation i.e., the competitive conditions among parties must remain preserved until a final decision is rendered. Section 1 of the said Guidelines categorises potential Gun Jumping conduct into three broad aspects – (i) the unnecessary exchange of competitively-sensitive information between the merging entities, (ii) the definition of contractual clauses governing the relationship between economic agents, and (iii) the conduct of the parties before and during the implementation of a merger.

The second category i.e., formulation of contractual clauses, requires the closest scrutiny as the provisions which risk premature integration of business activities pose the greatest danger. The concerning clauses are those which enable direct interference in a counterparty’s strategic decisions (unless strictly limited to protecting the value of the business being transferred), non-reimbursable advance payments (other than standard down payments, escrow deposits, or break-up fees), and ‘anteriority clauses’ which retroactively apply the contract terms in a way that integrates the undertakings before clearance.

The Guidelines recommend specific procedural safeguards – the most notable being the creation of ‘clean teams’. These teams act as an exclusive channel for information exchange, ensuring that competitively sensitive information is managed only by designated personnel, whether employees or independent consultants, who are responsible for handing such information in a secure and ring-fenced manner⁴¹. 

There is a prohibition on sharing information beyond what is strictly necessary for executing the binding instrument between the parties, which approach is also echoed by the CCI’s Competition Compliance Manual. It endorses the use of clean teams, albeit in a less structured manner. CADE’s Guidelines however provide greater operational precision, both for conceptual direction and a practical compliance framework, for enterprises to structure their pre-closing conduct without falling foul of Gun Jumping prohibitions.

Interpretational Gaps in the Indian Jurisprudence

Unlike the EU, where the Courts have developed a clear interpretational framework around Article 7 (1) of the EUMR distinguishing preparatory measures (Ernst & Young) from steps that confer the possibility of decisive influence (Altice), the law in India remains ambiguous on what constitutes premature consummation of a combination, and thereby a violation of the standstill obligation under the Act. The Act does not define when a combination ‘comes into effect’ nor has the CCI articulated objective triggers comparable to EU’s change of control standard. The decisions of the CCI have mostly been fact-dependent, involving broad notions such as competition distortions and the reduction in competition intensity, without spelling out why particular actions cross the line. Such lack of statutory precision and judicial consistency leaves merging parties to navigate uncertainty, in sharp contrast to EU’s more structured approach. 

The interpretational gaps are further compounded by the uneven application of the IPT, relied upon in Bharti Airtel Limited⁴² and Adani Green Energy Limited⁴³, to filter legitimate interim protection from Gun Jumping conduct, where an exhaustive application was considered in one but regarded as merely indicative in the other, and thereby eroding predictability and leaving the parties without a consistent benchmark. The EU framework, on the other hand, distinguishes between ancillary and preparatory conduct, and contractual rights that already amount to decisive influence, by failing to calibrate the analysis to the type and degree of control involved.

The enforcement of Section 6(2A) of the Act by the CCI lacks proportionality as even commercially motivated or valuation-protective actions or conducts may amount to a violation under the Act. In contrast, CADE’s Guidelines (Brazil) refer to certain definitive actions or conduct, such as anteriority clauses and non-reimbursable advance payments, along with compliance tools like clean teams, while EU has anchored its interpretation in the functional test of ‘possibility of decisive influence’. A similar definitive and coherent framework in India, codifying objective triggers, clarifying the scope of permissible interim measures, and issuing detailed compliance guidance, would reduce uncertainty while preserving the underlying rationale of the standstill obligation under Section 6(2A) of the Act.

Conclusion

Gun Jumping remains a pressing and evolving challenge in India’s competition law landscape. While the CCI has taken proactive steps in interpreting and penalising premature conduct, the absence of clear statutory definitions and inconsistent application of legal standards such as the IPT continue to foster legal uncertainty. In contrast, jurisdictions like EU and Brazil have developed more structured and nuanced frameworks that differentiate preparatory actions from those conferring control and offer detailed compliance mechanisms. To ensure clarity, predictability, and fairness in enforcement, the legislation ought to consider codifying objective triggers for notification, clarifying permissible interim conduct, and issuing comprehensive guidelines similar to CADE’s Clean Team model or the EU’s decisive influence test. A coherent framework anchored in clear statutory language, proportional safeguards, and practical compliance tools would not only align Indian law with global best practices but also ensure that enforcement serves its true purpose i.e., protecting competition without stifling legitimate business conduct.

FAQs

References –

1. Defined under Section 5 of the Competition Act, 2002
2. Inserted by way of Competition (Amendment) Act, 2007 (w.e.f. 01.06.2011)
3. Substituted instead of 210 days by way of Competition (Amendment) Act, 2023 (w.e.f. 10.09.2024)
4. Orders of Commission on combinations
5. UltraTech Cement Limited, Order dated 12.03.2018 passed in C-2015/02/246
6. Thomas Cook (India) Limited, Order dated 21.05.2014 passed in C-2014/02/153; NTPC Limited, Order dated 22.08.2023 [Competition Appeal (AT) No. 13/2023 is pending before NCLAT]
7. CCI (Procedure in regard to the transaction of business relating to combinations) Regulations, 2011
8. CCI (Combinations) Regulations, 2024
9. Order dated 08.03.2016 passed in C-2015/07/297
10. 2016 CompLR 1111
11. Order dated 10.02.2015 passed in C-2014/05/175
12. While arriving at this finding, the CCI relied upon Regulation 5(8) of the CCI (Procedure in regard to the transaction of business relating to combinations) Regulations, 2011
13. Judgment dated 17.04.2018 passed in Civil Appeal No. 10678/2016
14. Order dated 14.09.2016 passed in C-2015/08/299
15. Order dated 12.03.2018 passed in C-2015/02/246.
16. Order dated 09.03.2022 passed in C-2021/05/837
17. Order dated 09.03.2022 passed in C-2021/05/837
18. supra
19. supra
20. supra
21. Competition Compliance Manual
22. supra
23. supra
24. supra
25. supra
26. Judgment dated 17.04.2018 passed by the Supreme Court in Civil Appeal No. 10678/2016
27. Regulation 48 of the CCI (General) Regulations, 2009 [now repealed by CCI (General) Regulations, 2024]
28. Substituted by the Competition (Amendment) Act, 2023 (w.e.f. 10.09.2024)
29. Order dated 11.08.2023
30. European Union Merger Regulation, 2004
31. Judgement dated 31.05.2018 passed in Case C-633/16 by the Court (Fifth Chamber)
32. A concentration with a Community dimension as defined in Article 1, or which is to be examined by the Commission pursuant to Article 4(5), shall not be implemented either before its notification or until it has been declared compatible with the common market pursuant to a decision under Articles 6(1)(b), 8(1) or 8(2), or on the basis of a presumption according to Article 10(6).
33. Title VII, Chapter 1, Section 1, Article 101
    • The following shall be prohibited as incompatible with the internal market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market, and in particular those which:
      • directly or indirectly fix purchase or selling prices or any other trading conditions;
      • limit or control production, markets, technical development, or investment;
      • share markets or sources of supply;
      • apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;
      • make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.
    • Any agreements or decisions prohibited pursuant to this Article shall be automatically void.
    • The provisions of paragraph 1 may, however, be declared inapplicable in the case of:
      • – any agreement or category of agreements between undertakings,
      • – any decision or category of decisions by associations of undertakings,
      • – any concerted practice or category of concerted practices,
    • which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not:
      • impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives;
      • afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question.
34. Judgement dated 22.09.2021 passed by the General Court (Sixth Chamber) in Case No. T-425/18
35. supra
36. Judgement dated 09.11.2023 passed by the Court (Third Chamber) in Case No. C-746/21 P
37. The acts found under the provisions set forth in the caput of this article shall not be consummated before being reviewed, under this article and the procedure set forth in Chapter II of Title VI of this Law, under penalty of nullity, a pecuniary fine also being imposed, of a value not less than sixty thousand reais (R$ 60,000.00) nor more than sixty million reais (R$ 60,000,000.00) to be applied under the regulations, without prejudice to the opening of an administrative proceeding, under Article 69 of this Law.
38. Article 88 §4, Brazilian Competition Law
39.  CADE’s Internal Regulation (RiCADE)
40. CADE’s Guidelines for the analysis of previous consummation of merger transactions
41.  Section 2.2., CADE’s Guidelines for the analysis of previous consummation of merger transactions
42. supra
43. supra

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