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The Competition Commission of India rules that the green channel notice filed by Platinum Jasmine A 2018 Trust and TPG Upswing Ltd for acquiring a stake in UPL Sustainable Agri Solutions Limited is void ab initio due to existing horizontal overlaps. The commission imposes a total joint and several penalty of INR 5500000 under sections 43A and 44 of the Competition Act for consummating an ineligible combination and making incorrect declarations, and simultaneously approves the transaction under section 31(1) of the Act. The acquirers pay the penalty within 60 days from the date of receipt of the order.
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COMPETITION COMMISSION OF INDIA
Combination Registration No. C-2022/12/995
18th August 2023
In re: Proceedings against Platinum Jasmine A 2018 Trust, acting through its trustee Platinum Owl C 2018 RSC Limited, and TPG Upswing Ltd. under Sections 43A and 44 of the Competition Act, 2002
CORAM:
Ms. Sangeeta Verma Member
Mr. Bhagwant Singh Bishnoi Member
Appearances during the hearing:
For Acquirers : Mr. Rajshekhar Rao, Senior Advocate with Ms. Meherunissa Anand, Ms. Manasa Dammalapati, Mr. Toshit Shandilya, Mr. Sanjeev Kumar, Ms. Nandini Modi, Advocates along with Mr. William Cates Turner Herbert, Mr. Ayush Agarwal and Mr. Ombeer Tyagi, representatives of Abu Dhabi Investment Authority, TPG, and UPL, respectively.
Order under Sections 43A and 44 of the Competition Act, 2002
Introduction
Notifying Parties
Platinum Trust
It has been submitted that Platinum Trust is established under the laws of the Abu Dhabi Global Market (ADGM) by a deed of settlement dated 27th January 2019. The Abu Dhabi Investment Authority (ADIA) is the sole beneficiary and settlor of the trust. ADIA is a public institution established as an independent investment institution by the Government of the Emirate of Abu Dhabi. ADIA manages a global investment portfolio across more than two dozen asset classes and subcategories, including developed equities, emerging market equities, small cap equities, government bonds, credit, fixed income, real estate, infrastructure, private equity, cash and alternatives.
It has been submitted that Platinum Trustee, a restricted scope company, is incorporated in the ADGM. It is acting in its capacity as trustee for Platinum Trust. Apart from making investments in its capacity as trustee for Platinum Trust, it does not directly carry out any business activities in India.
TPG Upswing
The Upswing Trust
Transaction
UPL SAS will become a direct^1 wholly owned subsidiary of UPL;
SWAL Corporation Limited (SWAL) and Nurture Agtech Private Limited (Nurture), presently wholly owned subsidiaries of UPL, will each become wholly owned subsidiaries of UPL SAS;
transfer of the crop protection business (except manufacturing) and the agri- tech/farm service business conducted by UPL (Restructured Business) to UPL SAS and Nurture.
Further, it was envisaged that Nurture will acquire Adarsh Farm Services business (AFS Business) from UPL.
UPL SAS, including all entities/businesses that will be housed under it, pursuant to the internal reorganisation, is hereinafter collectively referred to as the Target Business.
From the information available in the public domain,^2 it appears that the UPL SAS Acquisition has been consummated on or before 17th February 2023.
Notice under Green Channel and Issue of Show Cause Notice (SCN)
Statutory Obligations
The Section 6(2) of the Competition Act, 2002 (Act) provides that any person or enterprise who or which proposes to enter into a combination shall give a notice to the Commission. Section 6(2A) of the Act provides that no combination shall come into effect until 210 days have passed from the day on which the notice has been given to the Commission under Section 6(2) of the Act or the Commission has passed orders under Section 31 of the Act, whichever is earlier.
The Notice was given under Section 6(2) of the Act read with Regulation 5A of the Combination Regulations, i.e., the facility of Green Channel approval was availed by the notifying parties. Under Green Channel approval facility, i.e., notice under Section 6(2) of the Act read with Regulation 5A of the Combination Regulations, a proposed combination is deemed to have been approved by the Commission under Section 31(1) of the Act upon filing of a notice under Regulation 5A(1) of the Combination Regulations and acknowledgement thereof.
Regulation 5A(1) of the Combination Regulations provides that for the category of combination mentioned in Schedule III of the Combination Regulations, the parties to such combination may, at their option, give notice in Form I along with the declaration specified in Schedule IV (Green Channel Declaration). Schedule III of the Combination Regulations provides as follows:
Considering all plausible alternative market definitions, the parties to the combination, their respective group entities and/or any entity in which they, directly or indirectly, hold shares and/or control: -
(a) do not produce/provide similar or identical or substitutable product(s) or service(s) (Horizontal Overlap);
(b) are not engaged in any activity relating to production, supply, distribution, storage, sale and service or trade in product(s) or provision of service(s) which are at different stage or level of production chain (Vertical Interface); and
(c) are not engaged in any activity relating to production, supply, distribution, storage, sale and service or trade in product(s) or provision of service(s) which are complementary to each other (Complementarity).
[emphasis supplied]
The notifying party confirms that it has furnished all the information and documents as required in Form I, as specified in Schedule II.
The notifying party confirms that the proposed combination falls under Schedule III and is not likely to cause adverse effect on competition.
The notifying party confirms that it has not made any statement which is false in any material particular or knowing it to be false; or omitted to state any material particular knowing it to be material.
The notifying party understands that if any of the above statements is found to be incorrect, the notice given and the approval granted, under regulation 5A, shall be void ab initio.
Signed by or on behalf of the notifying party
Signature(s)
Name (in block letters):
Designation:
Date: ________________
