Skip to content

Africa: A decade of competition law enforcement in the Common Market for Eastern and Southern Africa

18 May 2023
– 4 Minute Read

DOWNLOAD ARTICLE

The COMESA  Competition Commission (CCC) celebrates its tenth anniversary this year. Earlier this month (in May) it hosted a conference commemorating its remarkable journey of regional competition law enforcement in eastern and southern Africa.

Bowmans was invited to attend the conference and participate as a speaker on one of the panel discussions. We commended the drafters of the COMESA Competition Regulations (Regulations) and the previous Boards of the CCC who were instrumental in laying the foundation upon which the CCC now stands as a reputable competition and consumer protection regulator, in Africa, and internationally. The tenth anniversary is also testament to the collective efforts of the CCC’s team of professionals, who have strived to uphold the principles of law, and apply them in a manner that is fair and transparent, earning the trust of its stakeholders.

Highlighting its work over the past 10 years, the CCC noted that it has  reviewed and taken decisions with respect to some 360 merger transactions (involving companies with an aggregate turnover of more than USD 210 billion in the common market); investigated more than 40 cases of restrictive trade practices; conducted more than 12 market studies and market screening exercises; fined three businesses for non-compliance with the Regulations; concluded 14 MoUs with Member States; and provided capacity building and technical assistance to competition regulators and government institutions in 19 of its Member States.

Highlights of the CCC’S enforcements and achievements from 2013 to 2023

No. of mergers reviewed

No. of restrictive trade practices investigated

No. of market studies and market screening exercises

No. of businesses penalized

No. of MoUs concluded with Member States

No. of Member States benefiting from technical assistance and capacity building 

> 360

> 40

> 12

3

14

19

 

In the case of restrictive trade practices, the CCC launched 19 investigations into alleged anti-competitive behaviour, 13 of which the CCC self-initiated and six of which were a result of complaints received from market participants. A total of 14 companies applied to the CCC to review and determine if their agreements contained anti-competitive clauses, and in some cases, the CCC struck out offending clauses and imposed sweeping commitments to maintain and/or restore competition in the COMESA Common Market.

The CCC unconditionally cleared 264 mergers; conditionally approved 32 mergers; issued comfort letters in 53 cases; and 18 other transactions were either determined not to be notifiable or had been abandoned by the parties. A large proportion of these mergers took place in the energy sector, followed closely by mergers in the banking and finance sector, and thereafter agriculture. Of the three penalties imposed by the CCC, the first-ever penalty imposed was in relation to a merger that was not timeously notified, and the second was imposed on parties who had failed to comply with a commitment undertaken during merger approval.

To effectively enforce the Regulations, the CCC has provided technical assistance and capacity building to competition enforcers in Member States. This support and training has been critical given that Member States are at different levels of enforcement. The CCC aims to harmonise the competition laws of the various Member States so that there is uniformity of interpretation and application of the law.

Out of the 21 COMESA Member States, 17 have competition laws in place, whilst Eritrea, Libya, Somalia and Uganda have yet to adopt competition law, although in the case of Uganda, a draft Competition Bill is being discussed in Parliament. The CCC’s assistance to Member States has taken various forms, including via sensitisation workshops; reviewing national competition laws and harmonizing those with the Regulations; sponsoring training and study tours; and facilitating the temporary assignment of staff from newer regulators to more advanced competition regulators in Member States.

The CCC has left a mark on competition law enforcement in Africa, demonstrating how an institution can build its credibility through judicious combination of advocacy and enforcement.