[Vaishnav Bhat is a third-year law student from NALSAR University of Law, Hyderabad]
The Supreme Court’s judgment in Amazon.com NV Investment Holdings LLC v. Competition Commission of India, delivered on 27 May 2026, resolves the immediate dispute correctly. In 2021, the Competition Commission of India (CCI) had imposed an INR 202 crore penalty on Amazon.com NV Investment Holdings LLC (Amazon). The penalty was for alleged suppression of material facts during its review of Amazon’s 2019 investment in Future Coupons Private Limited (FCPL). The CCI had also directed that its own approval of that investment be kept in abeyance. The Supreme Court set aside both orders. The judgment, however, leaves behind a problem it could not solve. India’s merger control statute contains no mechanism to revoke or revisit a combination approval where the notifying party obtained it by deliberate deception. The CCI tried to construct such a power by implication. The Court rightly refused to read one in. It could not supply the power the Parliament has withheld. That is the gap this article seeks to address, through a comparison with how the European Union (EU) and the United Kingdom (UK) have approached the same problem.
The argument proceeds in four parts. First, it sets out the background to the dispute and the statutory lacuna the judgment confirms. Second, it examines two comparative models: the revocation power under article 6(3)(a) of the EU Merger Regulation, Council Regulation (EC) No 139/2004 (EUMR), and the UK’s Enterprise Act 2002 (EA 2002). Third, it argues that India’s mandatory notification regime makes the EU model the more appropriate template. Finally, it proposes three drafting requirements for a new section 31A.
Background
In August 2019, Amazon acquired a 49% stake in FCPL for approximately INR 1,431 crore. FCPL held shares in Future Retail Limited (FRL), then India’s second-largest organised retailer. This made the transaction structurally two-tiered. The CCI approved the combination on 28 November 2019 after Amazon had notified it under section 6(2) of the Competition Act 2002 (Act) in Form I.
The dispute surfaced in August 2020, when Future Group announced a deal to sell its retail assets to Reliance Retail. Amazon opposed the sale, invoking contractual rights under the FRL Shareholders’ Agreement. FCPL responded by filing a complaint with the CCI, alleging that Amazon had not been forthcoming during the 2019 notification. That complaint drew on material from parallel arbitration proceedings between Amazon and Future Group before the Singapore International Arbitration Centre. Pleadings exchanged there disclosed internal Amazon communications that had not featured in the original Form I filing. The CCI held that the confidentiality obligations under the Arbitration and Conciliation Act, 1996 did not bar reliance on those pleadings in proceedings before it. On that basis, the CCI issued a Show Cause Notice in June 2021. Its December 2021 order imposed the penalty and directed a fresh Form II filing. The National Company Law Appellate Tribunal, in a judgment dated 13 June 2022, substantially affirmed the CCI’s findings. Amazon then appealed to the Supreme Court.
The Lacuna Amazon v. CCI Confirms
The central statutory question in Amazon v. CCI was whether the Act permits the CCI to place an already-approved combination in abeyance pending fresh review. The Court held it does not. Sections 43A, 44, and 45 of the Act provide for financial penalties on parties who fail to notify, provide false information, or suppress material facts. They do not authorise the CCI to suspend or revoke an approval it has already granted. The Court further held that a generalised inference of lack of candor, without specific findings on falsity, materiality, the disclosure requirement, and the relevant state of mind, is insufficient to sustain a penalty.
Further, the Competition (Amendment) Act 2023 increased the maximum penalties under section 44 from INR 1 crore to INR 5 crore. It did not introduce any revocation mechanism. The post-judgment position, therefore, is that if a party obtains CCI’s approval by deliberate suppression of material facts, the CCI may impose financial penalties, now constrained by a mens rea requirement. It still cannot undo the approval itself. Whether that position is satisfactory depends on what alternatives are available and what the Indian regime actually needs.
Express Revocation, Deliberately Constrained: The EU Model
Article 6(3)(a) EUMR, gives the European Commission (EC) an explicit power to revoke a clearance decision on two grounds. The first is where the decision was based on incorrect information for which one of the undertakings is responsible. The second is where the decision was obtained by deceit.
In Sanofi/Synthelabo, the parties admitted to omitting a joint monopoly on stupefying active substances from their notification. The Commission revoked the initial clearance. The parties offered divestiture commitments and a fresh conditional clearance followed. A separate proceeding then imposed a financial penalty. Where the omission falls short of that threshold, the EC uses the financial penalty route instead, without revisiting the clearance. In Merck/Sigma-Aldrich, for instance, the EC imposed a EUR 7.5 million fine under article 14(1) EUMR. Completed transactions involve third parties and contractual arrangements that cannot easily be unwound. Therefore, intervention in a granted clearance is a remedy of last resort.
Where the provision is invoked, the transaction is re-examined for competition compatibility rather than being simply voided. Such a re-examination requirement prevents the provision from being weaponised as a penalty.
The UK Model: Deterrence Through Criminal Liability
The UK operates a voluntary merger notification regime, so the EA 2002 contains no revocation mechanism analogous to article 6(3)(a) EUMR. It relies instead on criminal liability. Under section 117 of the EA 2002, knowingly or recklessly supplying false or misleading information to the “Appropriate Authority” in connection with a merger investigation is an offence. It is punishable on indictment by up to two years’ imprisonment, a fine, or both, regardless of whether the transaction was cleared. The criminal sanction falls on the individual responsible personally, a different form of deterrence from a corporate financial penalty.
Mandatory Regimes Need Mandatory Safeguards
India operates a mandatory notification regime under section 6 of the Act. Combinations above prescribed thresholds must be notified and cannot be implemented without CCI approval, which aligns India much more closely with the EU than with the UK. Under this regime, the notifying party has a specific statutory obligation to furnish complete information before the CCI decides. The CCI’s review is entirely dependent on what the party discloses. Where deception corrupts that process and produces a clearance that would not otherwise have been granted, the case for revisiting the clearance is stronger. By comparison, in a voluntary regime, the regulator can investigate independently of the parties’ disclosures. Therefore, the UK’s criminal liability model, however appealing as a deterrent, addresses a different problem. The EA 2002’s criminal provisions also exist alongside the power of the Competition and Markets Authority under section 22(1) to investigate completed mergers that were never notified. The CCI has no comparable power of self-initiated review outside the limitation period under section 20(1) of the Act.
The EU model is therefore a more structurally appropriate template for India, for two reasons. First, a mandatory notification regime that lacks any mechanism to revisit a clearance obtained by fraud creates a rational incentive for strategic non-disclosure. Financial penalties, constrained by a heightened mens rea standard, may not adequately deter that incentive. A penalty that leaves the approval intact rewards the very conduct it is meant to punish. Second, article 6(3)(a) framework subjects any intervention to procedural constraints and a competition re-examination, rather than automatic invalidation. This addresses the legitimate concern that post-approval intervention should not be used to penalise parties for imperfect characterisation of transactions that were otherwise disclosed in substance.
Filling The Gap: Three Drafting Requirements
If Parliament chooses to fill the lacuna, the EU model suggests three drafting requirements.
First, the revocation power should be textually separate from the penal provisions under sections 43A to 45. The Supreme Court rejected the CCI’s attempt to conflate revocation with penalty. The power should sit within Chapter IV by inserting a new section 31A, and not within Chapter VI of the Act.
Second, the trigger should be restricted to clearances obtained by fraud, not merely by incorrect or incomplete information. Fraud, unlike deceit, has a settled and recognised meaning across Indian commercial and criminal law. Anchoring the trigger to that term keeps the exception narrower and more precisely defined. Article 6(3)(a) of the EUMR permits revocation for gross negligence. Extending the power to that same threshold risks turning a narrow correction mechanism into a standing basis for the CCI to revisit any approval it later views differently.
Indian courts have dealt with an analogous risk in income tax law. The Supreme Court has consistently held, in both CIT v. Kelvinator of India Ltd. and Sanand Properties (P) Ltd. v. CIT, that the power to reopen a completed assessment cannot rest on a mere change of opinion. There must be tangible material giving rise to a genuine reason to believe that income has escaped assessment. These lines of cases establish a broader principle: a correction mechanism must carry a threshold rigorous enough to distinguish genuine correction from reconsideration in disguise. That principle applies with equal force to merger control. Confining the revocation trigger to fraud, a standard higher than the EU’s own, performs the same function. It keeps a narrow corrective power from becoming a routine means of revisiting settled approvals.
Third, any invocation should initiate a fresh substantive review for competition compatibility and not result in automatic invalidation. This ensures the mechanism functions as a regulatory correction rather than a penalty whose costs fall on third parties without any recourse.
Conclusion
The Supreme Court in Amazon v. CCI reached the correct conclusion. It was right to hold that a statutory body cannot construct powers it has not been granted, and right to insist that penal liability requires precise findings on falsity, materiality, and intent. But correctness does not resolve the underlying problem. A mandatory notification regime without a fraud-revocation mechanism inverts its own logic. The regulator needs complete and accurate information before a combination is consummated, and that need is most acute when the information furnished is false. Leaving approved combinations permanently beyond scrutiny, regardless of the deception used to obtain approval, is a flaw in the current regime. Parliament has the EU model available as a template and the Court’s judgment as the occasion. The question is not merely whether to fill the gap, but how carefully to draft the power.
– Vaishnav Bhat