Allowed

1. Cintra InvIT Investments B.V. 2. Cintra Im Investments B.V.

CCI4 Jun 2024C-2024/03/1124

Case brief

AI extract

What is this about?

The Competition Commission of India, on merits, assessed a proposed acquisition involving Cintra SPVs and IRB infrastructure entities. Finding combined market shares low and horizontal/vertical overlaps minimal regardless of market delineation, the Commission approved the combination under Section 31(1), reserving the right to revoke if information is found incorrect. confidentiality was directed

What did the court decide?

Approval of the Proposed Combination under Section 31(1) of the Competition Act, 2002. Order subject to revocation if information is incorrect and treated as confidential under Section 57.

1. Cintra InvIT Investments B.V. 2. Cintra Im Investments B.V. — Company and Corporate | CCI (2024)

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COMPETITION COMMISSION OF INDIA

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Combination Registration No.C-2024/03/1124

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4^th June 2024

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Notice under Section 6(2) of the Competition Act, 2002 filed by Cintra InvIT Investments B.V. and Cintra IM Investments B.V.

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CORAM:

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Ms. Ravneet Kaur Chairperson Mr. Anil Agrawal Member

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Ms. Sweta Kakkad Member

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Mr. Deepak Anurag Member

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Order under Section 31(1) of the Competition Act, 2002

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On 18^th March 2024, the Competition Commission of India ( Commission ) received a notice under sub-section (2) of Section 6 of the Competition Act, 2002 ( Act ) filed by Cintra InvIT Investments B.V. ( Cintra SPV 1 ) and Cintra IM Investments B.V. ( Cintra SPV 2 ) [Hereinafter, Cintra SPV 1 and Cintra SPV 2 are collectively referred to as the “ Acquirers ”] for the proposed acquisition in IRB Infrastructure Trust ( Private InvIT/ Target 1 ) and MMK Toll Road Private Limited ( IM/ Target 2 ) [Private InvIT and IM are collectively referred as “ Targets ”] [Hereinafter, the Acquirers and the Targets are collectively referred to as the “ Parties ”].

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The notice has been filed pursuant to the following agreements – (a) Unit Purchase Agreement dated 14^th March 2024 between Anahera Investment Pte. Ltd. ( Anahera ),

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Combination Registration No. C-2024/03/1124

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Dagenham Investment Pte. Ltd. ( Dagenham ), and Cintra SPV 1; (b) Share Purchase Agreement dated 14^th March 2024 between Croxley Investment Pte. Ltd. ( Croxley ), Cintra SPV 2 and IM ; (c) Deed of Adherence cum Fourth Amendment Agreement to the Shareholders Agreement dated 14^th March 2024 between IRB Infrastructure Developers Limited ( IRB ListCo ), IM, Croxley and Cintra SPV 2; and (d) Deed of Adherence and Amendment to the Framework Agreement dated 14^th March 2024 between IRB ListCo, IM, Bricklayers Investment Pte. Ltd. ( Bricklayers ), Chiswick Investment Pte. Ltd. ( Chiswick ), Dagenham, Anahera, Stretford End Investment Pte. Ltd. ( Stretford ), Croxley, Cintra SPV 1 and Cintra SPV 2.

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The Proposed Combination involves the following: (a) acquisition of approximately 24% of the issued and outstanding unitholding along with certain commercially negotiated rights in the Private InvIT by Cintra SPV 1 from Anahera, Dagenham and Stretford, each of which is a part of the GIC Group¹ (InvIT Transaction) and (b) simultaneous acquisition of approximately 24% of the equity shareholding along with the right to nominate a director on the board of directors of the IM and protective shareholder rights in the IM of the Private InvIT by Cintra SPV 2 from Croxley (IM Transaction) [The InvIT Transaction and the IM Transaction are collectively referred to as the “ Proposed Combination ”].

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In terms of Regulation 14 of Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Regulations, 2011, the Commission, vide communications dated 3^rd April 2024, 22^nd April 2024 and 15^th May 2024 sought certain information(s)/ clarification(s), inter alia, relating to the activities of the Parties and the responses to the same were received on 15^th April 2024, 01^st May 2024 and 20^th May 2024.

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The Acquirers are SPVs incorporated in Netherlands. They are wholly-owned subsidiaries of Cintra Global S.E. ( Cintra ). Cintra is a Dutch-based infrastructure

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1 GIC Group, Singapore (i.e., a group of investment holding companies managed by GIC Special Investments Pte. Ltd.).

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Combination Registration No. C-2024/03/1124

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company, which is a wholly owned subsidiary of Ferrovial S.E. ( Ferrovial ). Ferrovial is the sole shareholder of Cintra, which in turn is the sole shareholder of the Acquirers. The Acquirers, thus, belong to the “ Ferrovial Group ” (consisting of Ferrovial and its affiliates, including Cintra). Cintra presently holds approximately 24.86% shareholding in IRB ListCo along with the right to appoint a nominee director on the board of IRB ListCo. The Acquirers do not have any direct presence or business activities in India, other than Cintra’s existing shareholding in IRB ListCo.

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The Ferrovial Group is a global developer of transport infrastructure, mobility solutions, engineering and is engaged in the construction of civil works and buildings. The Cintra division of the Ferrovial Group undertakes activities in relation to toll roads development and management. The Ferrovial Group is present in India through Ciinfra India Private Limited ( Ciinfra India ), Cadagua S.A. Project Office India and IVRCL-Cadagua Hogenakkal Water Treatment Company Private Limited. Ciinfra India is a financial and technical consultancy firm which provides advisory in financial, treasury, investor presentations and funding related aspects whereas the latter two entities do not carry out any business activities in India and are under liquidation/proposed to be liquidated.

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Target 1 i.e. , Private InvIT, is a private trust registered as an infrastructure investment trust ( InvIT ) with the Securities and Exchange Board of India. The sponsor and project manager of the Private InvIT is IRB ListCo, the trustee is IDBI Trusteeship Services Limited and the investment manager is IM. The unitholding of the Private InvIT is currently held by IRB ListCo (approximately 51% unitholding) and members of GIC Group (approximately 49% unitholding). The Private InvIT invests in road infrastructure assets in India and the road projects of the Private InvIT are held through SPVs, which execute roads and highway concessions granted by the NHAI (SPVs) in India. The Private InvIT is operating 14 highways assets, which are being managed pursuant to the concessions granted by the respective concessioning authorities.

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Target 2 i.e., IM is the investment manager of the Private InvIT. Its shareholding is currently held by each of IRB ListCo (including nominees of the IRB ListCo) (51%

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Combination Registration No. C-2024/03/1124

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shareholding) and Croxley (a part of GIC Group) (49% shareholding). It does not carry out any activities in India, except as the investment manager of the Private InvIT.

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The Targets are a part of the IRB Group. The ultimate parent entity of the IRB Group is IRB Holding Private Limited. IRB Group collectively refers to the IRB ListCo and each of its affiliates. IRB ListCo holds 51% in both the Targets (in which Cintra presently holds approximately 24.86% shareholding). IRB ListCo is engaged in carrying out construction works in Engineering, Procurement and Construction contracts ( EPC ), providing O&M services mainly with its subsidiaries and joint ventures. The principal business of IRB ListCo is construction, tolling, operation and maintenance of roads. It is also engaged in certain ancillary businesses i.e. , power generation and development and operation of airports. IRB ListCo has presence in twelve states in India. IRB ListCo is present in the above-mentioned activities both directly and by way of being the sponsor of two InvITs, namely, IRB InvIT Fund ( Public InvIT ) and Private InvIT.

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It is submitted that the only affiliate of the Ferrovial Group having a presence in India, which exhibits horizontal overlaps with the Targets is IRB ListCo. Therefore, the competition assessment is made between the Ferrovial Group and its investment in IRB ListCo and all its affiliates on one hand and the Targets and all assets held by them on the other hand. Based on foregoing, it is submitted that the Parties exhibit horizontal overlap in the market for provision of concessionaire services for roads and highways including the provision of O&M services in India; and a vertical relationship between affiliates of IRB ListCo and Targets in the market for provision of EPC services for roads and highways in India at the upstream level and market for provision of concessionaire services for roads and highways in India at the downstream level, respectively.

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The Commission decides to leave precise delineation of the relevant market open, as it was observed that because of the reasons stated below, the Proposed Combination is not likely to result in appreciable adverse effect on competition irrespective of the manner in which the relevant market is delineated.

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Combination Registration No. C-2024/03/1124

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Based on the submissions of the Parties, it is noted that the combined market shares of Parties in the market for provision of concessionaire services for roads and highways including the provision of O&M services in India are in the range of [0-5] % in terms of volume and in the range of [10-15] % in terms of value. Further, there are other players present in the market. With respect to the vertical relationship, it is noted from the submissions of the Parties that the market shares are in the range of [0-5] % in the market at upstream level as well as in the market downstream level. Further, each of the markets has presence of other players.

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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 subsection (4) Section 20 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.

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This order may stand revoked if, at any time, the information provided by the Acquirer is found to be incorrect.

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The information provided by the Acquirer shall be treated as confidential in terms of and subject to provisions of Section 57 of the Act.

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The Secretary is directed to communicate to the Acquirer accordingly.

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1. Cintra InvIT Investments B.V. 2. Cintra Im Investments B.V.

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1. Cintra InvIT Investments B.V. 2. Cintra Im Investments B.V.

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