Defining and Identifying ‘Group’ Entities – The Slippery Slope of ‘Control’

Competition regulators rely primarily on information furnished by parties notifying transactions, while assessing the potential impact on competitive conditions. To ensure that notifying parties provide all the information necessary for regulators’ assessment, merger control regulations usually contain a laundry list of information that must accompany merger notifications. Merger control regulations also empower regulators to seek additional information from notifying parties as well as third parties during their review process. As an extraordinary measure, merger control regulations empower regulators to take punitive actions against notifying parties for providing incorrect information or withholding information that the regulator considers material for their review.

Exercising its power to penalize companies for material non-disclosure for the very first time, CCI recently penalized UltraTech Cement Limited (‘UltraTech’) for not disclosing the details of shareholdings of Kumar Mangalam Birla (and his family members) (‘KMB’ / ‘KMB Family’) and the companies owned/ controlled by them in companies competing with Jaiprakash Associates Limited whose cement manufacturing plants were being acquired by UltraTech (‘Decision’). While this Decision marks the beginning of CCI’s use of its powers under Section 44 of the Competition Act, 2002 (‘Act’), it equally increases the scope of disclosures for notifying parties and adds to the uncertainty surrounding the already somewhat muddled discourse on ‘control’.

The prescribed longer form II requires notifying party(ies) to provide information on horizontal and vertical overlaps not just between the immediate parties to the transaction (i.e. the acquirer and the target enterprises[1], including their subsidiaries) but also between the group to which the acquirer belongs (i.e. the acquirer group) and the target enterprise (including its subsidiaries).

While determining the extent of UltraTech’s obligation to disclose its own and KMB’s shareholding in companies engaged in cement business that competed with the acquired target business, namely, Century Textiles and Industries (Century) and Kesoram Industries (Kesoram), CCI expanded the meaning of the term ‘control’ to include ‘material influence’ in addition to ‘de-facto’ and ‘de-jure’ control. In doing so, the Decision has altered one of the three tests for determining whether two or more enterprises belong to the same ‘group’.

Statutory Tests for ‘Group’

The Act defines a ‘group’ as: two or more enterprises that are directly or indirectly in a position to (‘Group Tests’):

i.    exercise 50%[2] or more of the voting rights in the other enterprise (‘Voting Rights Test’); OR
ii.   appoint more than 50% of the members of the board of directors in the other enterprise (‘Board Test’); OR
iii.  control the management or affairs of the other enterprise (‘Control Test’).[3]

While the Voting Rights Test and the Board Test are premised on objective parameters, the Control Test is nebulous. ‘Control’ is defined under the Act to ‘include’ controlling the affairs or management by one or more enterprises or groups, over another enterprise or group. This broad definition has led CCI to clarify the meaning of the term ‘control’ through its decisions.

Implications of the Decision

When examining whether Kesoram and Century satisfied the Control Test, the Decision does not identify any rights that KMB had in Kesoram and Century. Instead, CCI clarifies that while the ability to manage the affairs of the other enterprise (the definition of control under the Act) may be inferred from special or veto rights, other sources of control including, “status and expertise of an enterprise or person, board representation, structural/financial arrangements” may equally also exist. On this basis, CCI concludes in the Decision that all degrees and forms of control constitute control (within the meaning of the Act) and that ‘material influence’ is the lowest form of control followed by de facto control and controlling interest (de jure control).

In doing so, the Decision appears to expand an already diluted interpretation of the term ‘control’, to now include all forms of ‘material influence’. Not only does this interpretation deviate from a well-established, globally acceptable, definition of ‘control’ i.e. ‘the ability to exercise decisive influence over the management or affairs’ of another enterprise,[4] but owing to the definitional link between ‘group’ and ‘control’, expands the scope of the term ‘group’.[5]

The interlacing of the statutory definition of the term ‘group’ with the definition of the term ‘control’ and the subsequent dilution of the meaning of ‘control’ to include ‘material influence’ has far reaching implications (a) the computation of jurisdictional thresholds and the application of various exemptions available to intra-group transactions; and (b) ascertaining the extent of horizontal and vertical overlaps in merger filings.

Computation of jurisdictional thresholds

One of the eight jurisdictional thresholds/tests to determine whether a transaction is notifiable to CCI, involves computing the value of assets and turnover generated by the group to which the target/ merged entity will belong post the transaction (‘Group Thresholds’). Further to the Decision, notifying parties can arguably be required to carry out an onerous time-consuming self-assessment to identify each such enterprise in which it may directly or indirectly exercise ‘material influence’[6] to conclusively determine if the Group Thresholds are breached.

Consider the example of Enterprise A, that proposes to acquire 51% of the total share capital of Enterprise B. Enterprise A, also owns 25% of the total share capital of Enterprise C and has the right to appoint 1 director to the board of Enterprise C. Enterprises B and C operate in the same relevant market. Enterprise A satisfies neither the Voting Rights Test nor the Board Test in relation to enterprise C. Yet, the newly coined test of “material influence” can lead to the inference that as a result of its shareholding and presence on the board of enterprise C, Enterprise A controls Enterprise C. Such an inference, premised on the Decision is likely to lead to an incorrect agglomeration of minority investments made by an enterprise to comprise a larger group. This would increase the possibility of Group Thresholds being breached, resulting in the notification of transactions over which CCI lacks jurisdiction.

Yet, the expanded Control Test may not enable notifying parties to benefit from the “intra-group” exemption (provided under Item 8 of Schedule I of the CCI (Procedure in regard to the transaction of business relating to combinations) Regulations, 2011 (‘Combination Regulations’)) (‘Intra-Group Exemption’).[7] Consider the same example as above where Enterprise A decides to acquire additional shares in Enterprise C. Further to the Decision, while Enterprise A may arguably claim that Enterprise C satisfies the Control Test (and Enterprises A and C are part of the same group), the expanded scope of the Control Test may well allow Enterprise C to now belong to more than one ‘group’. Where a target (Enterprise C) is under the ‘joint control’ of a group other than that of the acquirer, the Intra-Group Exemption would not be available.

Mapping overlaps

The longer form II requires notifying party(ies) to provide information on horizontal and vertical overlaps not just between the immediate parties to the transaction (i.e. the acquirer and the target enterprises, including their subsidiaries) but also between the group to which the acquirer belongs (acquirer group) and the target enterprise (including its subsidiaries). Although the shorter form I does not require parties to map overlaps vis-à-vis the acquirer group, CCI nonetheless expects notifying parties to do so.

The expanded meaning of the term ‘control’ and the consequent possibility of a wider set of enterprises being agglomerated to comprise a ‘group’ adds another layer of complexity to the exercise of mapping overlaps. An informed mapping of overlaps requires the acquirer and the target to share the entire list of products/ services offered by them with their advisors. Companies which have been agglomerated as part of the acquirer or target group, only because of the material influence test may not share details of the products or services offered by them to help map overlaps exhaustively, thereby exposing the notifying party(ies) to potential risk of penalty for material non-disclosure.

Conclusion

The first two Group Tests, i.e., the Voting Rights Test and the Board Test clearly set out the legislative intention for identifying a ‘group’. The MCA in 2011 specifically increased the percentage thresholds in the Voting Rights Test to 50% (from 26%) so that only those entities that directly or indirectly held 50% or more shareholding or votes in another enterprise would constitute a group. The well-established statutory interpretation principle of ejusdem generis requires that the Control Test be interpreted in accordance with the Voting Rights Test and the Board Test. No wider construction may be afforded. However, the expansive interpretation of the Control Test in the Decision effectively dilutes, if not entirely negates, the statutory Voting Rights and Board Tests.

In sum, the Decision raises more questions than it answers. By expanding the meaning of the term ‘control’ to include control by way of ‘material influence’ – a term open to multiple interpretations, CCI has unwittingly also changed the meaning of the term ‘group’.  Notifying parties must tread with caution and till the time CCI issues a clarification, it would perhaps help to err on the side of caution. Notifying parties may also consider approaching CCI for pre-filing consultations, which may help address some of the ambiguities discussed above.

[1] The term “enterprise” is defined under the Act to include its “subsidiaries”.
[2] In 2011, by way of a notification, the MCA increased the percentage thresholds in the Voting Rights Test from 26% to 50% such that any ‘group’ exercising less than 50% of the voting rights in another enterprise is exempt from the provisions of Section 5 of the Act for a period of 5 years. The operation of the notification was further extended for 5 years (until 2021) in 2016.
[3] See Explanation (b) to Section 5 of the Act.
[4] Independent Media Trust, C-2012/03/47.
[5] The European Commission (‘EC’)considers ‘decisive influence’ i.e., the ‘power to block actions which determine the strategic commercial behavior of an undertaking’. In essence, EC may assess minority acquisitions only when such acquisitions result in the investor being conferred AVRs that allow it to veto decisions that are ‘essential for the strategic commercial behavior’ of an enterprise. The EC appears to distinguish between investor protection AVRs from those that relate to strategic decisions of business policy of the proposed target.
[6] In the Decision, CCI defined ‘material influence’ as “the lowest level of control, implies presence of factors which give an enterprise ability to influence affairs and management of the other enterprise including factors such as shareholding, special rights, status and expertise of an enterprise or person, Board representation, structural/financial arrangements etc.”.
[7] Item 8 exempts “an acquisition of shares or voting rights or assets, by one person or enterprise, of another person or enterprise within the same group, except in cases where the acquired enterprise is jointly controlled by enterprises that are not part of the same group.”

Published In:Inter Alia Special Edition Competition Law October 2018 [ English
Date: October 30, 2018