MAURITIUS: AMENDMENTS TO COMPETITION COMMISSION GUIDELINES IN RELATION TO MERGERS
The Competition Commission of Mauritius (CCM) recently amended the Competition Commission Guidelines 5 (CCG5) under section 38 of the Competition Act (Act).
CCM had identified certain shortcomings in the application of CCG5, which it aimed to address through these new amendments. A public consultation was also held in respect of such proposed amendments before their enforcement.
A new section on ‘Acquisition of Control’ has been introduced by the amendments which essentially clarifies the different levels under which a person may bring an enterprise under his/ her control. These are, in the order of increasing degree of control: material influence, de facto control, and controlling interest.
The amendments explain that for the purposes of assessing material influence, the test is whether the acquirer has the ability to influence - and not whether such influence has actually been exercised.
The amendments provide certain instances which may amount to material influence. Such material influence does not confer on the acquirer the ability to control the policy of the target, but to materially influence such policy.
The amendments also provide instances which may constitute a de facto control, a level of control which occurs where a person, who despite holding less than half of total shares issued by the target, is able to control the target, generally through an additional agreement which allows such person to do so.
As already established, a controlling interest is achieved by acquiring more than majority of the voting rights of the target.
An increase in the degree of control may now create a new merger situation. The CCM will for that purpose conduct a case-by-case assessment to determine if there has been a change in the quality of control.
The CCM released a communique, dated 3 August 2020, describing the amendments as clarifications to the existing provisions of the Act. They do not imply any changes to such provisions. The amendments are merely descriptive in nature, aimed at facilitating correct interpretation of the provisions of the Act.
The amended guidelines can be accessed here.