Gun Jumping

By Shruti Aji Murali

1. Definition

Gun jumping is the premature implementation of a notifiable combination, in whole or in part, prior to receiving the approval of the Competition Commission of India (CCI).

The Competition Act, 2002 (Act) imposes two obligations on parties to any combination meeting the thresholds in Section 5: (a) they must notify the CCI in the prescribed format (Notification Obligation);¹ and (b) they must not give effect to the combination, in whole or in part, until the CCI grants approval or the statutory review periods² lapse, whichever is earlier (Standstill Obligation).³ The CCI can penalise breaches of either obligation under Section 43A, by imposing penalties that can extend up to 1% of the combination's assets, turnover or value of transaction, whichever is higher.⁴

1. Types of gun jumping

Conceptually, gun jumping is a regulatory infraction, not a substantive competition wrong. Section 43A imposes a civil liability for breach of statutory obligation; mens rea is not required, and absence of appreciable adverse effect on competition (AAEC) is not a defence.⁵

However, gun jumping can broadly occur in two forms:

1. Procedural gun jumping is the failure to notify the CCI and closing the transaction before or without the receipt of CCI approval. This is a procedural default.

2. Substantive gun jumping refers to pre-closing conduct that “gives effect to” parts or the entirety of the combination in substance. This could include taking steps towards integration, exchange of commercially sensitive information (CSI) without clean-team protocols, joint pricing or customer allocation, or the exercise of veto rights. Substantive gun jumping is now expressly captured by Sections 6(2A) and 43A following the Competition (Amendment) Act, 2023.

2. Commentary

1. Ingredients of gun jumping

Under the Act, parties can be held liable for gun jumping, if the following conditions are met:

1. The parties have entered into a transaction that is a notifiable combination. Only transactions that cross the jurisdictional thresholds specified in Section 5 of the Act, i.e. the asset or turnover thresholds,⁶ or the deal value threshold⁷ coupled with substantial business operations in India. Transactions that meet the jurisdictional thresholds are referred to as “combinations”.

2. The parties breach either:

   1. the Notification Obligation - Either no notice is filed, or the notice does not present the combination as a composite whole.⁸ The Notification Obligation must be complied with in substance – merely characterising transactions as independent or exempt in a notice cannot be considered a failure to file, as long as parties disclose all relevant transactions with supporting documentation.⁹

   2. the Standstill Obligation – Parties have given effect to (or consummated) the combination, either entirely or partially, before receiving CCI approval or the lapse of the 150-day review period. Whether a step amounts to consummation turns on whether control has, in substance, passed to the acquirer. The CCI's Combinations FAQs confirm that control is assessed in substance. As such, a part-payment,¹⁰ a corporate guarantee,¹¹ board nominations,¹² or the exchange of commercially sensitive information¹³ can amount to consummation even where a transaction is not yet formally closed.

2. Nature and quantum of penalty

As noted above, Section 43A imposes a civil liability for breach of statutory obligation; mens rea is not required, and absence of AAEC is not a defence.¹⁴

The CCI is empowered to impose a penalty extending up to 1% of the total turnover or combined value of assets of the combination or the value of the transaction, whichever is higher. However, the CCI has never levied the maximum permissible level of penalty in any case so far.

Typically, the CCI computes penalties based on financial statements from the financial year immediately preceding the year in which the transaction agreements were executed.

3. Trends from CCI practice

Since the coming into force of the merger control provisions under the Act,¹⁵ the CCI has issued 68 orders penalising parties under Section 43A.¹⁶ Some key trends include:

1. Failure to notify dominates. Over 50 of these orders involve a failure to notify transactions that qualify as combinations. This situation typically arises when transacting parties mistakenly assume their deal qualifies for an exemption and proceed to execute it, only for the CCI to disagree. A recent illustration of this is Allcargo / Gati-Kintetsu (M&A/2022/11/01(03)/CD) where the CCI imposed a penalty of INR 50 lakh. The CCI dismissed Allcargo's contention that acquiring the final 30% stake in Gati-Kintetsu (thereby achieving 100% ownership) did not constitute a change in control over the target entity.

2. Strict interpretation of exemptions. Based on recent enforcement trends, the CCI appears to have adopted a rigorous, technical approach to the Notification Obligation by construing statutory exemptions narrowly. Since 2023, at least 11 of 14 gun jumping orders (over 75%) arise from parties assuming an exemption was available and the CCI disagreeing. This includes the applicability of the Small Target Exemption¹⁷ (Cummins,¹⁸ Axis Bank,¹⁹ MassMutual²⁰), minority acquisitions in the ordinary course of business (Goldman Sachs,²¹ NTPC)²² and Form III post-notification (Bank of Baroda).²³

3. Incorrect green channel filings – The CCI’s Green Channel facility is available to combinations between parties that have no horizontal overlaps, vertical linkages or complementary linkages (including amongst their respective controlled entities and affiliates). Under the Green Channel route, the combination is deemed approved once the notification is filed and the CCI’s office issues an acknowledgment. The CCI has imposed penalties for gun jumping and making incorrect statements (Section 44) where parties used the Green Channel facility but on further inquiry, were found to have actual or potential horizontal overlaps, vertical linkages or complementary links (Plume,²⁴ VVDN,²⁵ Platinum Jasmine).²⁶ The recent amendments to Section 43A introduced a dispensation allowing parties to re-notify the combination in the appropriate form, within 30 days of the CCI passing an order invalidating the original Green Channel filing. This dispensation is only available for transactions notified after the amendments came into effect, i.e. 10 September 2024.²⁷

4. Quantum of penalty – In recent years, penalties for gun jumping have ranged from INR 4 lakhs (Plume²⁸) to INR 5 crores (Piramal / Shriram²⁹ and General Electric³⁰).

   1. In 2025, the CCI considered mitigating factors such as bid-timeline complexity, regulatory overlap with sectoral legislation, absence of AAEC and cooperation and did not impose any penalty on parties, even though they had failed to notify the CCI and completed the combination without its prior approval (Torrent Power³¹).

   2. The highest ever penalty imposed in relation to merger control proceedings was INR 202 crores, on Amazon, in 2021. The CCI penalised Amazon under Section 43A, as well as Sections 44 and 45 of the Act, for not adequately disclosing its indirect interest in Future Retail through its investment in Future Coupons. The NCLAT upheld the CCI’s approach, but both orders were set aside in entirety by the Supreme Court in May 2026.³²

5. Appellate scrutiny tightens CCI’s penalty powers – Appellate scrutiny has progressively tightened Section 43A around its statutory ingredients.

   1. Prior consummation of inter-connected steps - The Supreme Court began by emphasizing the inter-connection rule in Regulation 9(4) of the Combination Regulations, in CCI v. Thomas Cook.³³ It held that inter-connected steps form a single composite combination, and technical isolation of individual steps cannot override the Notification and Standstill Obligations in Section 6 of the Act. In SCM Soilfert, the Supreme Court reiterated the Thomas Cook principle, and added that the Indian merger control framework does not contemplate post-consummation notifications. It upheld the CCI’s imposition of a penalty on SCM Soilfert for filing a notification after purchasing shares of the listed company target on the stock exchange.³⁴

   2. Section 43A applies only to notifiable Combinations: Two decisions of the National Company Law Appellate Tribunal (NCLAT) draw the converse boundary, highlighting that the CCI cannot impose penalties under Section 43A, where the underlying Notification Obligation does not arise. In Eli Lilly and Co v CCI and ITC Ltd v CCI, the NCLAT set aside CCI penalties on the footing that the 2017 notification issued by the Ministry of Corporate Affairs was clarificatory and operated retrospectively, removing the transactions from the notification net altogether.

   3. Substance over form: The Supreme Court’s recent overturning of the CCI’s penalty on Amazon³⁵ clarified that compliance with the Notification Obligation must be determined based on substance and not form.

      • The Supreme Court held that imperfect characterisation of agreements that were disclosed to the CCI in the merger notification cannot amount to a "failure to notify" under Section 43A. Relying on the fact that Amazon’s merger notification did disclose the relevant agreements and related business arrangements as well as the fact that the CCI’s own merger approval order recorded its assessment of these arrangements and their impact on the Indian retail market, the Supreme Court held that Amazon had notified the CCI in substance. On this basis, it set aside the penalty imposed under Section 43A.

      • The Supreme Court also highlighted that Sections 44 and 45 require strict satisfaction of the specific statement or omission, its materiality, and the prescribed mental element. As with the Section 43A penalty, the Supreme Court set aside the penalties under Section 44 and 45, noting that the CCI had not sufficiently demonstrated in its penalty order as to how the specific ingredients of those provisions were met.

      • The Supreme Court also categorically held that the CCI did not have the statutory power to suspend a merger approval order or to compel re-notification, once a Combination has been notified and approved.

3. Comparative perspective

Gun jumping enforcement varies based on the nature of the merger control framework. While India’s merger control framework is mandatory and suspensory, other jurisdictions such as Singapore and the UK have voluntary notification frameworks. The policy choice between voluntary and mandatory notification shapes gun-jumping enforcement across jurisdictions.

1. Other mandatory notification jurisdictions. Merger control frameworks in the European Union and Germany are mandatory and suspensory, as in India. As such, parties are strictly prohibited from implementing any part of a notifiable transaction before receiving formal clearance from the European Commission or the German Federal Cartel Office. Gun jumping in these jurisdictions is viewed as a procedural and substantive violation because it undermines the regulator's ability to assess market impact ex-ante. Authorities actively prosecute both the failure to notify and premature implementation – a recent example includes the record-breaking fine in the Illumina / Grail case.³⁶ The statutory cap for gun jumping penalties in the EU and Germany is up to 10% of an undertaking's global turnover, which is 10 times higher than in under the Act.

2. Voluntary notification frameworks.

1. Singapore. Section 54 of the Competition Act 2004 prohibits anti-competitive mergers, but the merger control framework does not mandate notification and there is no statutory standstill.³⁷ As such, unlike in India, parties do not face any gun jumping risk. However, to ensure that the Singapore competition authority is able to review non-notified transactions for substantial competition risks, it has the authority to issue interim hold-separate orders, directing parties to halt integration pending its review.³⁸ This ensures that it is able to effectively conduct its review and impose remedies if required, to address competition concerns, without having to “unscramble” a completed transaction.

2. United Kingdom. Similarly, the Competition and Markets Authority in the UK is empowered to issue Initial Enforcement Orders (IEOs),³⁹ when it exercises its jurisdiction to investigate non-notified mergers. In this framework, the IEO effectively replaces the statutory standstill obligation in mandatory, suspensory merger control regimes. The CMA’s largest ever penalty for the breach of an IEO was GBP 50.5 million in Facebook / GIPHY (2020).⁴⁰

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1. Section 6(2) of the Act.↩︎

2. The CCI must form a prima facie opinion under Section 29(1A) within 30 calendar days of notification (Phase I); failing that, deemed approval follows on the expiry of the overall 150-day review period under Sections 31(11) and 31(12) of the Act.↩︎

3. Section 6(2A) of the Act.↩︎

4. As per the amendments to Section 43A of the Act, with effect from 10 September 2024.↩︎

5. Paragraphs 21–28, Competition Commission of India v Thomas Cook (India) Ltd, Supreme Court of India, 17 April 2018, (2018) 6 SCC 549.↩︎

6. Section 5(a), (b) or (c) of the Act.↩︎

7. Section 5(d) of the Act.↩︎

8. As per Regulation 9(4) of the CCI (Combinations) Regulations, 2024 (Combination Regulations), a single notice must be filed for all inter-connected steps of a transaction, even if only one inter-connected step is notifiable. The CCI’s Combination FAQs set out five factors for inter-connection: meeting of minds; commonality of business and parties; simultaneous negotiation, execution and consummation; common board approvals or press releases; and commercial feasibility of isolating the transactions.

   Further, Regulation 9(5) of the Combination Regulations allows the CCI to consider the substance of the transaction when evaluating its notifiability, and disregard any structuring to avoid notification.↩︎

9. Amazon v. CCI, Civil Appeal No. 4974 of 2022, judgment of the Supreme Court dated 27 May 2026 (Amazon v. CCI).↩︎

10. Hindustan Colas Private Limited (C-2015/08/299), Chhatwal Group Trust / Shrem Group (C- 2018/01/545).↩︎

11. Ultratech/Jaypee (C-2015/02/246).↩︎

12. Bharti Airtel/Tata (C-2017/10/53), Piramal / Shriram Transport Finance (C-2015/02/249)↩︎

13.  Adani Green Energy Limited (C-2021/05/837).↩︎

14. Paragraphs 21–28, Competition Commission of India v Thomas Cook (India) Ltd, Supreme Court of India, 17 April 2018, (2018) 6 SCC 549.↩︎

15. The Indian merger control regime came into effect on 1 June 2011.↩︎

16. CCI, Orders under Sections 43A and 44, <https://www.cci.gov.in/combination/orders-section43a_44>.↩︎

17. Based on Section 5(e) of the Act, read with the Competition (Minimum Value of Assets or Turnover) Rules, 2024, any transaction where the target enterprise (or target business) has assets of less than INR 450 crores or turnover of less than INR 1250 crores in India, in the previous financial year does not qualify as a combination within the meaning of Sections 5(a), (b) and (c) of the Act (Small Target Exemption). Notably, the Small Target Exemption does not apply to the deal value threshold under Section 5(d).↩︎

18. Re: Cummins Inc / Meritor Inc, Competition Commission of India, 11 August 2023 (C-2022/11/981) — penalty of INR 10 lakh.↩︎

19. Re: Axis Bank Ltd / CSC e-Governance Services India Ltd, Competition Commission of India, 9 August 2023 — penalty of INR 40 lakh.↩︎

20. Re: Massachusetts Mutual Life Insurance Co / Invesco Ltd, Competition Commission of India, 7 August 2023 (M&A-2021/01/810) — penalty of INR 5 lakh.↩︎

21. Re: Goldman Sachs (India) AIF Scheme-1 / Biocon Biologics Ltd, Competition Commission of India, 14 January 2025 (M&A/10/2020/01/CD) — penalty of INR 40 lakh.↩︎

22. Re: NTPC Ltd / Ratnagiri Gas & Power Pvt Ltd, Competition Commission of India, 22 August 2023 (M&A/01/2021/03/CD) — penalty of INR 40 lakh.↩︎

23. Re: Bank of Baroda / IndiaFirst Life Insurance Co, Competition Commission of India, 20 June 2023 — penalty of INR 5 lakh.↩︎

24. Re: CA Plume Investments / Bequest Inc / Quest Global Services Pte Ltd, Competition Commission of India, 26 June 2025 (C-2023/10/1066) — penalty of INR 4 lakh.↩︎

25. Re: India Excellence Fund-IV / VVDN Technologies Pvt Ltd, Competition Commission of India, 16 August 2024 (C-2023/04/1021) — penalty of INR 1 crore.↩︎

26. Re: Platinum Jasmine A 2018 Trust / TPG Upswing / UPL, Competition Commission of India, 18 August 2023 (C-2022/12/995) — penalty INR of 5 lakh under Section 43A and INR 50 lakh under Section 44.↩︎

27. Re: CA Plume Investments / Bequest Inc / Quest Global Services Pte Ltd, Competition Commission of India, 26 June 2025 (C-2023/10/1066) — penalty of INR 4 lakh↩︎

28. Re: CA Plume Investments / Bequest Inc / Quest Global Services Pte Ltd, Competition Commission of India, 26 June 2025 (C-2023/10/1066) — penalty of INR 4 lakh.↩︎

29. Re: Piramal Enterprises Ltd / Shriram Transport Finance Co, Competition Commission of India, 2 May 2016 (C-2015/02/249) — penalty of INR 5 crore.↩︎

30. Re: General Electric Co / GE Industrial France SAS / GE Capital, Competition Commission of India, 16 February 2016 (C-2015/01/241) — penalty of INR 5 crore.↩︎

31. Re: Torrent Power Limited / Dadra and Nagar Haveli and Daman and Diu power Distribution Corporation Limited, Competition Commission of India, 14 January 2025 (M&A/03/2022/02/CD) – no penalty imposed.↩︎

32. Re: Amazon.com NV Investment Holdings LLC / Future Coupons Pvt Ltd, Competition Commission of India, 17 December 2021 (C-2019/09/688) — penalty of INR 202 crore; set aside by the Supreme Court in Amazon v. CCI.↩︎

33. Competition Commission of India v Thomas Cook (India) Ltd, Supreme Court of India, 17 April 2018, (2018) 6 SCC 549.↩︎

34. Paragraphs 25–31, SCM Soilfert Ltd v CCI, Supreme Court of India, 17 April 2018.↩︎

35. Amazon v. CCI.↩︎

36. The European Commission imposed a fine of approximately EUR 432 million on Illumina for knowingly breaching the standstill obligation under EU merger rules in July 2023. This was later overturned by the European Court of Justice (C-611/22 and C-625/22, Illumina v Commission, 3 September 2024), which ruled that national competition authorities cannot refer a merger to the European Commission if they do not have the competence to review it under their own national laws. It emphasized that statutory thresholds serve as an important guarantee of legal certainty and predictability for transacting companies.↩︎

37. Parliament of Singapore, Competition Act 2004 (as amended), Section 54 (anti-competitive mergers; voluntary notification), <https://sso.agc.gov.sg/Act/CA2004>.↩︎

38. Competition and Consumer Commission of Singapore, Guidelines on Merger Procedures 2022, 1 February 2022, <https://www.cccs.gov.sg/legislation/cccs-guidelines>.↩︎

39. Parliament of the United Kingdom, Enterprise Act 2002, Sections 22 and 33 (voluntary notification of relevant merger situations; CMA may impose interim measures); Section 72 (Initial Enforcement Orders / IEOs to prevent pre-emptive action), <https://www.legislation.gov.uk/ukpga/2002/40/contents>.↩︎

40. Decision, Facebook Inc / GIPHY Inc, Competition and Markets Authority, 20 October 2020 — penalty GBP 50.5 million for breach of an IEO.↩︎