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The Competition Commission of India approves the acquisition of a fifty-four point fifty percent shareholding in Fourth Partner Energy Private Limited by the International Finance Corporation, the Asian Development Bank, and DEG – Deutsche Investitions – und Entwicklungsgesellschaft mbH. The transaction involves primary subscriptions and secondary purchase of shares. The Commission concludes that the proposed combination does not cause an appreciable adverse effect on competition in India. The order is subject to revocation if the information provided by the acquirers is incorrect.
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COMPETITION COMMISSION OF INDIA
Combination Registration No. C-2024/10/1201
31st December 2024
Notice under Section 6(2) of the Competition Act, 2002 jointly given by International Finance Corporation, Asian Development Bank and DEG – Deutsche Investitions – und Entwicklungsgesellschaft mbH
CORAM:
Ms. Ravneet Kaur Chairperson
Mr. Anil Agrawal Member
Ms. Sweta Kakkad Member
Order under Section 31(1) of the Competition Act, 2002
On 28th October 2024, the Competition Commission of India (‘Commission’) received a notice (‘Notice’) under sub-section (2) of Section 6 of the Competition Act, 2002 (‘Act’) jointly given by International Finance Corporation (‘IFC’), Asian Development Bank (‘ADB’) and DEG – Deutsche Investitions – und Entwicklungsgesellschaft mbH (‘DEG’) [hereinafter, IFC, ADB and DEG are collectively referred to as ‘Acquirers’]. The Notice was filed pursuant to the execution of various documents including the share purchase agreements dated 29th June 2024 executed amongst each Acquirer, Fourth Partner Energy Private Limited (‘Target’) and The Rise Fund SF Pte. Ltd. (‘Seller’); subscription agreements dated 29th June 2024 executed, inter alios, amongst each Acquirer and Target; Amended and Restated Shareholders’ Agreement dated 4th July 2024 executed, inter alios, amongst Seller, Acquirers, and Target [hereinafter, Acquirers and Target are collectively referred to as the ‘Parties’].
The Proposed Combination envisages the acquisition of 54.50% shareholding in the Target on a fully diluted basis, by IFC [24.77%], ADB [19.82%], and DEG [9.91%] through primary subscriptions and secondary purchase. It is also submitted that Target will issue certain warrants viz., 2024 New Series A Warrants to its promoters, which, being uncertain, do not form part of the Proposed Combination.
In terms of Regulation 14 of the Competition Commission of India (Combinations) Regulations, 2024, vide letter dated 11th November 2024, certain information and clarifications were sought from the Acquirers. The Acquirers submitted the response dated 27th November 2024, after seeking an extension of time. Since the response was not complete, another letter was issued on 10th December 2024 and the response dated 18th December 2024 was furnished by the Acquirers. The Acquirers also submitted certain voluntary submissions vide email dated 30th December 2024.
IFC, an international organization, is headquartered in Washington D.C., United States of America and is a member of the World Bank Group. It is established by an international treaty called the Articles of Agreement among its member countries, including India. IFC’s entire share capital is held by 186 member countries. IFC provides finance and financial services primarily to the private sector in developing countries that are its members. In India, IFC has investments across various sectors such as financial services, infrastructure, manufacturing, and agribusiness.
ADB is a multilateral development financial institution established by an international treaty called the Agreement Establishing the Asian Development Bank (‘ADB Charter’) among its member countries, including India. It is owned by 69 member countries and is headquartered in Manila, Philippines. ADB assists its developing members by providing loans, technical assistance, grants, and equity investments to promote development. ADB’s operations in India are aimed to help sustain economic growth momentum by financing robust, inclusive, and modern infrastructure, efficient logistics, well-managed urbanization, social investments, and green initiatives.
DEG is a company incorporated in Germany. It belongs to the KfW Group, the Federal Republic of Germany’s state-owned development bank. DEG offers financing, advise, and support to private sector enterprises operating in developing and emerging market countries.
Target is a company incorporated in India. Target, along with all its subsidiaries and affiliates, belongs to the ‘Fourth Partner Energy Group’. Target, including through its affiliates, provides integrated renewable energy solutions including installing, owning, and operating solar and wind power plants that supply electricity to commercial and industrial consumers. Target is also engaged in the provision of engineering, procurement & construction (‘EPC’) and operations & maintenance (‘O&M’) services primarily on a captive basis. It provides limited EPC and O&M services to third-party commercial and industrial customers as a combined and composite offering.
Based on the information provided in the Notice, ADB (including its affiliates), as well as DEG (including its affiliates), do not exhibit any horizontal, vertical, or complementary overlaps with Target (including its subsidiaries and affiliates).
With respect to overlaps of IFC (including its affiliates) with Target, based on the information provided in the Notice, the parties exhibit horizontal overlaps in the following markets:
(a) Generation of power by affiliates of IFC, namely Hero Future Energies Private Limited (‘HFEPL’) and Applied Energy Technologies Private Limited (‘AETPL’) and Target (including its affiliates).
(b) Provision of EPC solutions for renewable power generation by HFEPL as well as Target and its subsidiary, Newen Systems Private Limited (‘NSPL’).
The Commission in the past has segmented the broad market for the generation of power into power generated from renewable and non-renewable sources. Since the parties are present only in the renewable sector, this sector has been further sub-segmented based on solar, wind, and hybrid. It is submitted that Target is not present in the hybrid segment.
Further, the Ministry of Power issued a revised Renewable Purchase Obligations (‘RPO’) vide Order bearing No. F. No. 09/13/2021-RCM dated 22nd July 2022. It provides a trajectory for total RPO and sub-trajectory for Wind RPO (for the projects commissioned after 31st March 2022), Hydro Power Purchase Obligation, and Other RPO. Thus, it stipulates separate RPO from wind (commissioned after 31st March 2022). Further, the revised RPO also prescribes trajectory for energy storage obligation viz., consumption of “solar/wind energy along with/through storage”. In so far as Wind RPO is concerned, the same can only be met by projects commissioned after 31st March 2022 and therefore, the wind projects commissioned after 31st March 2022 cannot be substituted by the projects commissioned before 31st March 2022. Accordingly, the Commission has also considered a segment of wind power generated by projects that are commissioned after 31st March 2022. The affiliates of IFC and Target are present in this sub-segment. Additionally, it is submitted that the Target is not present in ‘solar/wind energy along with/through storage’, and thus, the same is not considered for assessment in the instant case.
In addition to the above, the parties also exhibit the following potential vertical overlaps:
(a) Provision of EPC Solutions (upstream) by Target and NSPL and generation of power (downstream) by HFEPL and AETPL.
(b) Provision of EPC Solutions (upstream) by HFEPL and generation of power (downstream) by Target (including its affiliates).
(c) Generation of renewable power (upstream) by Target (including its affiliates) and production of green hydrogen (downstream) by HFEPL.
The Commission decided to leave the delineation of the relevant market open, as it was observed that the Proposed Combination is not likely to cause appreciable adverse effect on competition in any of the plausible relevant market(s) in India.
Based on the submissions of the Acquirers, the Commission noted that in the broad market of power generation (including its segments and sub-segments) as well as the market for the provision of EPC Solutions for renewable energy, the combined market share of the Parties (including their affiliates) is in the range of [0-5]% and the incremental market share is insignificant. The combined presence of the Parties in the sub-segment of generation of power through wind commissioned after 31st March 2022 is in the range of [5-10]%. With respect to the vertical overlaps, it is observed that the presence of the relevant entities in each of the upstream and downstream markets/segments is not such so as to cause any competition concern. Further, there are various large players present in each of the market/segment. Based on the foregoing, it appears that the Proposed Combination is not likely to foreclose competition in any of the aforesaid markets/segments in India.
Considering the material on record, including the details provided in the Notice and the assessment of the Proposed Combination based on the factors stated in Section 20(4) of the Act, the Commission is of the opinion that the Proposed Combination is not likely to have appreciable adverse effect on competition in India. Therefore, the Commission approves the Proposed Combination under Section 31(1) of the Act.
This order may be revoked if, at any time, the information provided by the Acquirers is found to be incorrect.
The information provided by the Acquirers shall be treated as confidential in terms of and subject to provisions of Section 57 of the Act.
The Secretary is directed to communicate to the Acquirers accordingly.
