COVID-19: MERGER NOTIFICATION PROCESSES AND COMPETITION ENFORCEMENT ACTIVITY IN AFRICA
Further to our Newsflash of 19 March 2020, we continue to monitor developments on the operations and priorities of competition regulators across Africa during the global pandemic. Our latest information is set out below:
The Competition Regulatory Authority is functioning as usual.
The Competition and Consumer Authority is functioning on a skeletal staff basis.
On 18 March 2020, the President of the CEMAC Commission formally announced the suspension of all meetings and workshops at CEMAC regional offices, including meetings relating to competition matters. Merger notifications can still be submitted to the CEMAC offices. However, non-essential staff are working remotely and, as such, delays in the merger review should be expected.
The COMESA Competition Commission (CCC) is functioning as usual. On 17 March 2020, the CCC issued a press release warning companies and individuals selling products with the claim that they can 'treat' or 'prevent' COVID-19, without medical evidence, that such conduct contravenes article 27 of the COMESA Competition Regulation and attracts a penalty of up to USD 300 000.
The Egyptian Government declared a partial two-week curfew on 24 March 2020, which has resulted in the closure of most government offices and public services. The Egyptian Competition Authority is operating on a skeletal staff basis, to receive complaints. Merger notifications are being submitted electronically.
On 25 March 2020, the Ethiopian Government implemented a ‘work from home’ principle. At the time of writing, the Trade Competition and Consumer Protection Authority was yet to indicate how its operations would be impacted by the Ethiopian Government’s directive.
The eSwatini Competition Commission is accepting merger filings electronically.
Officials of the Competition Authority of Kenya (CAK) are working off site and are limiting face-to-face external meetings but are expected to enable these to take place remotely via video or telephone conference where necessary/ possible.
Merging parties are encouraged to submit filings electronically.
On 16 March 2020 the CAK issued a press release noting that it had issued a remedial order to Cleanshelf Supermarkets (Cleanshelf) after investigations determined that the retailer 'unconscionably' adjusted prices of Tropikal brand hand sanitizers (500ml) in contravention of the Competition Act, No.12 of 2010.
The CAK found that 'the retailer therefore exploited its relative strength as a retailer to commercially detriment consumers whose bargaining position has been diminished following the pronouncement of existence of COVID-19 in Kenya'. The remedial order required Cleanshelf to contact and refund all consumers who purchased the 960 pieces of the Tropikal brand hand sanitizers above the usual selling price.
The Competition and Fair Trading Commission (CFTC) is functioning as usual. The CFTC issued a press release on 23 March 2020 noting that it had ordered 11 pharmacy shops (six in Lilongwe and five in Blantyre) to immediately cease and desist from excessive pricing of products used for the treatment of COVID-19. These products were hand sanitisers, face masks and gloves.
On 23 March 2020, the Mauritian Government implemented a ‘curfew’ until Thursday, 2 April 2020. As such, the office of the Competition Commission of Mauritius is closed but staff are working remotely. Complaints can be submitted electronically.
The Namibian Competition Commission (NaCC) is encouraging merging parties to submit merger notifications electronically from 18 March 2020 to 20 April 2020. The NaCC still requires a hard copy of the merger notification to be submitted to it after this period.
The Head of Civil Service of Nigeria on 23 March 2020 directed that all non-essential public servants on grade level 12 and below work from home with effect from Tuesday, 24 March 2020, until further notice. As such, the Federal Competition and Consumer Protection Commission (FCCPC) is not currently operating at full capacity.
The FCCPC issued a press release on 23 March 2020 advising against arbitrary, unreasonable, unconscionable, excessive and irrational pricing of critical hygiene products (price gouging). The press release notes that 'violators will be criminally prosecuted where the evidence sufficiently supports same'.
On 24 March 2020 the South African Competition Commission issued a press release noting that the Commission will scale down operations significantly but will prioritise all COVID-19 complaints and the enforcement of the regulations gazetted by the Minister of Trade and Industry, Minister Ebrahim Patel. During this period, the Commission discourages the filing of complaints unrelated to COVID-19 as well as all merger transactions except those involving failing firms or firms in financial distress.
Complaints related to abuses of dominance or such exploitative practices relating to COVID-19 will be handled between the Commission and the National Consumer Commission (NCC) through a dedicated team. The press release notes that to date the Commission and the NCC have received over 20 complaints of excessive or exploitative pricing of essential products such as face masks, toilet paper and sanitizers.
The following regulations impacting competition regulation in South Africa have been issued to date in response to COVID-19:
- Regulations exempting certain categories of agreements and practices in the banking sector which are required to respond to the COVID-19 crisis. See further details here.
- Regulations that prohibit excessive pricing by dominant suppliers, restrict suppliers of all goods and services from charging prices which are unconscionable, unfair, unreasonable or unjust, and impose measures to facilitate the supply of goods and services during the period that COVID-19 is declared a national disaster. See further details here.
- Regulations exempting certain categories of agreements and practices in the healthcare sector which are required to respond to the COVID-19 crisis. See further details here.
- Regulations exempting certain categories of agreements and practices in the hotel industry which are required to respond to the COVID-19 crisis. See further details here.
The Tanzanian Fair Competition Commission (FCC) is functioning as usual. On 19 March 2020, the FCC issued a notice warning importers, traders, manufacturers, and dealers of antiseptic, face masks and gloves that price fixing, creating artificial shortages, and refusing to sell such products is an offence under the Fair Competition Act, 2003.
On 22 March 2020 the Competition Council issued a notice suspending all judicial and consultative activities until 4 April 2020.
The Zambian Competition and Consumer Protection Commission is functioning as usual.
The Zanzibar Fair Competition Commission is functioning as usual.
The Competition and Tariff Commission is accepting new merger applications, however, the processing time may be extended.