Uncategorized

South African Competition Tribunal Hands Down Another Price-Gouging Case: Face Masks Supplier Fined Maximum Penalty

By Michael-James Currie and Nicola Taljaard

[Currie is a director at Primerio and Taljaard is a lawyer at Primerio]

On 28 April 2022, the South African Competition Tribunal (“Tribunal”) handed down a decision in which it found Tsutsumani Business Enterprises (“Tsutsumani”) had contravened the excessive pricing prohibition contained in section 8(1)(a) of the Competition Act (“Act”). The conduct relates to the supply of face masks by Tsutsumani to the South African Police Services (“SAPS”) during the early stages of the Covid-19 pandemic.

The case against Tsutsumani is the first time that the Commission has successfully prosecuted a company for price gouging in the context of a public procurement process. The Commission did, however, successfully prosecute two companies for supplying masks at excessive prices at a retail level. In 2020, the Tribunal, in Competition Commission v Babelegi Workwear and Industrial Supplies CC (“Babelegi) and Competition Commission of South Africa v Dis-Chem Pharmacies Limited (Dis-Chem) the Tribunal found the respondents guilty of excessive pricing. In the latter case, the Tribunal warned that ‘material price increases of essential items such as surgical masks, even in the short run, in a health disaster such as the Covid-19 outbreak, warrants its intervention.’ This warning has certainly proved to be a serious one in light of the Tsutsumani case.

Tsutsumani is a general trader who participated in a tender for the urgent supply of face masks to South African Police Services (“SAPS”) during the first hard lock-down in South Africa. The complaint, lodged by SAPS to the Commission on 5 May 2020, alleged that Tsutsumani had engaged in price gouging following a major and unprecedented surge in the demand for face masks.

The Tribunal recognized the precarious position SAPS found themselves in as it required nine million masks per month during the relevant period and found that Tsutsumani acted exploitatively towards the SAPS by quoting the State entity R16.25 million for a 500 000 bulk mask supply order during April 2020. The determination that this price was excessive was made following evidence being led showing that Tsutsumani added a mark-up of 87%, giving them a 46% gross margin per mask. The monetary reward amounted to approximately R5.3 million in excessive profits alone. In accordance with the fines prescribed by legislation, the Tribunal fined Tsutsumani the maximum administrative penalty of 10% of its relevant turnover, amounting to a total of R3 441 689.10.

Assessing the South African price gouging cases purely from a competition law point of view, the Tribunal’s price gouging cases do raise several concerns regarding the extent to which excessive pricing – or abuse of dominance cases more generally – may be prosecuted in future. Most notably, the earlier price gouging cases found a firm which had only a 5% market share to be dominant on the basis that the firm possessed “market power”, albeit for a very short period, as a result of the Covid 19 pandemic. Basic economic principles tell us that price is typically influenced by the demand-supply relationship. Assessing “market power” with reference to a very short time frame notionally means, therefore, that any factors which give rise to a demand surge or supply shortage, may confer “market power” on a firm who may be subject to scrutiny if they increase their prices subject to such demand/supply pressures. Such a short term approach to assessing market power also naturally excludes any assessment to consider likely market entry or incentives to increase supply to respond to the demand surge.

Although the Tribunal and the Competition Appeal Court sought to emphasise the unique market dynamics due to the pandemic, the economic and legal principles set out in these decisions could be expanded to other cases beyond circumstances as significant as a global pandemic. It would be preferable if there were clear rules published as to when firms (even small firms) are at risk by raising prices during a state of national disaster (such as those which were in fact published in South Africa but only after the alleged conduct subject to the price gouging cases took place). While one might have some sympathy for the competition authorities wanting to protect consumers during the pandemic, by departing from traditional approaches to assessing excessive pricing cases so as to address price gouging concerns risks potentially undermining certainty and makes it difficult for firms to internally assess their conduct against the relevant benchmarks. The enforcement and application of competition law, like all laws, should always strive to advance legal certainty. This is why deviating from a body of international precedent and best practice should not be easily departed from. If it was clear that price gouging cases such as those prosecuted to date were only applicable during states of National Disaster that would go a long way to providing such certainty. But there is no basis why complainants are not able to apply the principles set out in the price gouging cases to all sorts of market dynamics which may ordinarily lead to significant price increases. We have already noted the Commission’s public warning to domestic airliners not to increase prices when a certain airliner carrier had its licence temporarily suspended for a few days. A case entirely unrelated to the pandemic.

So, with a lower standard against which to prosecute excessive pricing cases and the introduction of a reverse onus on the respondent to demonstrate that its prices are not excessive (in particular instances), coupled with a potentially much lower threshold against which to find a firm is “dominant” than traditionally the case, we expect to see more excessive pricing complaints being pursued.


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AAT exclusive, Morocco, new regime, notification

Gun-jumping in Morocco, Switzerland-style

In a relatively rare northwestern excursion on the continent, we are reporting today that the Moroccan competition authority (the Competition Council, or “CC”) based in Fez, which has operated only since late 2018, issued its first-ever gun-jumping fine to Swiss construction/chemicals firm Sika Aktiengesellschaft. Sika will have to pay (unless it exercises its right to a judicial appeal of this inaugural MCC decision, which it appears the company has waived and agreed to pay the) approx. $1m in fines, per the recent Article 19 fining decision made on April 28, 2022.

The underlying conduct consisted of Sika’s May 2019 acquisition of 100% of the capital and voting rights of its French competitor, Financière Dry Mix Solutions SAS, with business activities in and economic ties to Morocco, via its “Sodap” in-country subsidiary. Sika – the largest construction chemicals firm worldwide, according to its own marketing materials – likewise conducts business in Morocco, in addition to 100 other countries globally.

According to the MCC, the parties purportedly failed to notify the transaction pursuant to the mandatory provisions in Arts. 12-14 of the Moroccan competition act (Loi no. 104-12 of 2014) and thus caused the MCC to open its first gun-jumping investigation, leading to this — not insignificant — fine that has now been issued by the Council. The original liability finding was made previously, in MCC decision n°134/D/2021 (dated 6th December 2021).

Under the domestic merger-control regime, a notifiable transactions exists when:

  1. two or more previously independent undertakings merge;
  2. one or more persons, already controlling at least one undertaking, acquire, directly or indirectly, whether by purchase of securities or assets, by contract or by any other means, control of the whole or parts of one or more undertakings; and
  3. one or more undertakings acquire, directly or indirectly, whether by purchase of securities or assets, by contract or by any other means, control of the whole or parts of one or more other undertakings.

To avoid similar mishaps from happening in the future, the MCC — in collaboration with the General Confederation of Moroccan Enterprises (CGEM) — held a conference and issued a legal compliance guide for businesses active in Morocco in January 2022. The MCC’s president, Ahmed Rahhou, expressed his hope that the Guidebook would “allow companies to avoid being in breach of the law and to know their rights and duties especially in terms of competition law.”

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AfCFTA, COMESA, event

COMESA antitrust workshop addresses AfCFTA

The COMESA Competition Commission (CCC), under the leadership of its CEO and Director Dr. Mwemba, organised its first “Emerging Trends in Competition and Consumer Law Enforcement in the Wake of Regional and Continental Integration” workshop in Zambia, targeting legal practitioners across and outside Africa. Its objective is to discuss various issues in competition and consumer protection law enforcement at national, regional and continental level including emerging issues such as the African Continental Free Trade Area (AfCFTA).

Michael Currie, a competition partner at Primerio, said of the event, “Great to be participating at the COMESA Competition Commission’s first Workshop dedicated specifically to legal practitioners, hosted here in Livingstone. It was informative, and simply good to be travelling, meeting old friends and colleagues and seeing world heritage sights all in a few days work. This is an important initiative by the CCC as it expands its advocacy and enforcement initiatives across the Common Market. Important topics on the agenda including updates on the CCC’s approach to penalties, settlement procedures and investigations as well as the more robust merger regime in place. Thank you Willard Mwemba for the invitation and congrats on a well-organised event!”

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Uncategorized

South African Competition Commission Prosecutes Facebook for Abuse of Dominance

By: Gina Lodolo

On 14 March 2022, the South African Competition Commission (“Commission”) referred a complaint against Meta Platforms Inc is the parent company of WhatsApp Inc (“WhatsApp”) and Facebook South Africa (hereafter jointly “Meta”), to the Competition Tribunal (“Tribunal”) for allegedly engaging in abuse of dominance.

The referral follows WhatsApp (as part of the  Meta group) attempting to off-board GovChat from the WhatsApp platform. GovChat is a chatbot service connecting government to millions of citizens on issues of public concern (e.g. information on COVID-19 vaccinations and social grants). GovChat is reliant on the WhatsApp platform to function and connect users, without which its entire existence will be prejudiced.

GovChat utilizes WhatsApp for their services due to WhatsApp’s scale and consumer reach, however, Meta has attempted to off-board GovChat by placing reliance on WhatsApp’s terms and conditions to enforce a restriction against monetisation of confidential information through the use of consumer data obtained on the platform.

In this regard, the Commissions media release notes that “Facebook has imposed and/or selectively enforced exclusionary terms and conditions regulating access to the WhatsApp Business API, mainly restrictions on the use of data”.

The selective enforcement by Meta and attempts to off-board GovChat from the WhatsApp platform, according to the Commission, potentially violates Section 8(d)(ii) of the Competition Act 89 of 1998 (as amended) (“Act”) which prohibits a dominant firm from abusing its dominance by “refusing to supply scarce goods or services to a competitor or customer when supplying those goods or services is economically feasible”. In the alternative, the Commission alleges that Meta has engaged in an exclusionary act or refused to give a competitor access to an essential facility when it is economically feasible to do so (under section 8(1)(b) or 8(1)(c) of the Act).

The Commission has requested the Tribunal to:

  1. Impose the maximum penalty permitted under the Act, being 10% of Meta’s turnover;
  2. Interdict Meta from off-boarding GovChat; and
  3. Declare void exclusionary terms and conditions that are selectively applied in a manner that prevents potential competition by restricting access to the WhatsApp platform for potential competitors.

In its media release, the Commission stated that “access to digital markets is dependent on access to digital platforms including as in this case, access to an important digital communication platform”.

Primerio Director, Michael-James Currie notes that this complaint referral follows an interim relief application whcih GovChat successfully obtained against Facebook and WhatsApp in the beginning of 2021 in terms of which WhatsApp was prohibited from off-boarding GovChat.

This case, says Currie also coincides with a very proactive drive by the Competition Commission to consider competitive effects in digital markets in South Africa.

The case also suggests that the Competition Commission considers the existing rules regarding abuse of dominance as being adequate to address competition concerns in the market.

For more background information click here

To access the Competition Commission media release, click here

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Uncategorized

SOUTH AFRICAN COMPETITION COMMISSION TO LITIGATE AGAINST THE EXCESSIVE PRICING OF BREAST CANCER TREATMENT DRUGS

By Joshua Eveleigh

On 08 February 2022, the Competition Commission (“Commission”) released a press statement indicating that it had referred a matter to the Competition Tribunal (“Tribunal”) for the prosecution of Roche Holding AG (“Roche AG”), and its subsidiaries, Roche Bassel and Roche South Africa.

The nature of the Commission’s referral is premised on allegations that Roche AG and its subsidiaries had imposed excessive prices for Trastuzumab, a breast cancer treatment drug, in contravention of section 8(1)(a) of the Competition Act 89 of 1998 (“Competition Act”). As a result of the alleged conduct, the Commission has estimated that an excess of 10 000 breast cancer patients were unable to afford Trastuzumab between the period of 2011 and 2019.

In its press statement, the Commission placed particular emphasis on the fact that the alleged conduct bore the greatest impact on poor women who “…cannot access essential treatment because they cannot afford to pay for it. This is so even for the minority of women who belong to medical schemes.”

Notably, the recent Constitutional Court decision in Competition Commission v Mediclinic (“Mediclinic”) has had a seemingly profound impact on the Commission’s approach towards the present matter. In Mediclinic, the Constitutional Court emphasised the importance of the Constitution when interpreting and adjudicating competition law – specifically in regard to section 27, the right to have access to health care services. In its judgment, the Constitutional Court referred to both the Tribunal and the Competition Appeal Court (“CAC”) as state institutions that have the obligation to facilitate the Bill of Rights and to promote the right of access to health services. As a result of the Mediclinic judgment, the Commission has stated that the alleged conduct results in the prevention of access to health services, in contravention of section 27(1)(a) of the Constitution.

Due to the egregious nature of the alleged conduct, the Commission states that it is seeking that the maximum penalty be imposed against Rosche AG and its subsidiaries. In this regard, section 59(2) of the Competition Act provides that the maximum administrative penalty that may be imposed “may not exceed 10 per cent of the firm’s annual turnover in the Republic and its exports from the Republic during the firm’s preceding financial year.”

The Commission’s referral to the Tribunal and the grounds on which it relies, emphasises the overarching significance of the Mediclinic judgment in that an alleged conduct’s impact on the Bill of Rights, and public policy considerations as a result, is now preeminent consideration to be had respect of all aspects of competition law.

Primerio International partner, Michael-James Currie says the South African Competition Commission has been one of the most active agencies globally insofar as prosecuting excessive pricing cases is concerned, but and have had limited success to date. Subsequent to the amendments to the Competition Act in 2018, there has not been a case that has been fully litigated before the adjudicative bodies.

It will be interesting to see how this case progresses and the extent to which non-traditional competition factors are ultimately taken into account in interpreting the scope and application of the excessive pricing provisions contained in the Competition Act.

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AAT, cartels

South Africa: Motor vehicle finance institutions referred to the Competition Tribunal for alleged collusion

By Gina Lodolo

On 3 February 2022, the South African Competition Commission (“SACC”), released a press statement confirming that the SACC has made a referral to the Competition Tribunal (“Tribunal”) to prosecute FirstRand Bank Limited (“First Rand”), Wesbank, and Toyota Financial Services South Africa Limited (“TFS”) (jointly “Motor Vehicle Finance Institutions”) for allegations of a violation of Section 4(1)(b)(ii) of the Competition Act 89 of 1998, as amended (“Act”).

In this regard, Section 4(1)(b)(ii) of the Act provides that :

an agreement between, or concerted practice by, firms, or a decision by an association of firms, is prohibited if it is between parties in a horizontal relationship and if-(b) it involves any of the following restrictive horizontal practices: (ii) dividing markets by allocating customers, suppliers, territories, or specific types of goods or services”

Generally, once the SACC has initiated a complaint and found that a prohibited practice has  been established, it must refer the complaint to the  Competition Tribunal. Wesbank (as a division of FirstRand) and TFS allegedly prevented competition by entering into a shareholders agreement containing non-compete clauses. The SACC press statement provides that the Motor Vehicle Finance Institutions allocated markets because they are ‘suppose to compete’, which means that they are firms in a horizontal relationship.  In particular, the shareholders agreement included clauses ‘that prohibit[ed] WesBank from offering vehicle finance to customers seeking to purchase vehicles at authorised Toyota dealerships’. Further, Wesbank was also prohibited from financing specific vehicles, being ‘the “new” TOYOTA, LEXUS and HINO vehicles and any “used” vehicles sold through any authorised Toyota dealership, except McCarthy Group’.

Should the Competition Tribunal indeed find that the Motor Vehicle Finance Institutions violated the Act, Section 59 of the Act provides that the Competition Tribunal can impose an administrative penalty of up to 10% of the firm’s annual turnover for engaging in a prohibited practice. Further, if the same firms are found to repeat the conduct, an administrative penalty for a repeat offence can be up to 25% of the firm’s annual turnover.  

Primerio Director Michael-James Currie notes that cartel conduct in South Africa constitutes a criminal offence and respondents found liable are also potentially at risk of follow-on civil damages.

To view the full press statement click here

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Uncategorized

Nigeria: The Federal Competition and Consumer Protection Commission Talks to Primerio in Relation to Competition Law Enforcement Trends and Policy

*Compiled by Jemma Muller and Tyla Lee Coertzen

Introduction

On 25 November 2021, Primerio International hosted an online “fireside chat” with representatives from the newly established Nigerian Federal Competition and Consumer Protection Commission (the “FCCPC”). The discussion, led by Michael-James Currie (Director at Primerio International), shed light on the FCCPC’s practices and focus points which were highlighted by Eme David-Ojugo (Chief Legal Officer at the FCCPC) and Yemisi Oluyode (FCCPC merger’s analyst).

[If you would like to access the full discussion, click here]

The importance of the newly established FCCPC in Nigeria is undisputed. Nigeria’s GDP is the largest economy on the African continent. As such, good competition law policy is of significant importance not only locally but across the continent more generally. As the African Continental Free Trade Agreement and competition policy in Africa is being negotiated, it is critical that there are strong voices from a variety of national territories and agencies, particularly from those economies which are more developed. This will ensure balanced policy and effective competition enforcement which prioritises free trade.

This Primerio fireside discussion with the FCCPC provided great insight into the current state of play with reference to policy and enforcement trends in Nigeria.

The Status of the Agencies

The FCCPC and the Competition and Consumer Protection Tribunal (the “CCPT”) were established by the Federal Competition and Consumer Protection Act, 2018 (the “FCCPA”) in March 2021 and are the  competition and consumer protection authorities in Nigeria. The authorities were established in order to promote fair, efficient and competitive markets in the Nigerian economy.

The FCCPA is, in many respects, similar to the South African Competition Act,1998 (as amended) (the “SACA”). Furthermore, Ojugo noted that the FCCPC is fortunate to have experience from across the world to utilize and that international antitrust precedent serves as a guide to the FCCPC.

Currently, the FCCPC is active in both merger control and in the enforcement of restrictive practices and has played a proactive role in pursuing its objectives. Ojugo described the FCCPC as having an “open door policy” whereby it encourages parties to engage directly with the FCCPC to assist the FCCPC in developing and improving its practices accordingly.

In 2021, The FCCPC published various Draft Regulations and Guidelines which it is in the process of finalising. Among these are the:

Restrictive Practices Enforcement – the FCCPC’s use of Dawn Raids

During the “fireside chat”, the FCCPC emphasized the use of dawn raids in its investigative processes in accordance with section 27 of the FCCPA. Dawn raids are generally unannounced and provide the authority with various powers to inspect, search and make seizures. In this regard, the FCCPC has received specialist training from the Federal Trade Commission (the “FTC”). The FCCPC has made use of dawn raids, particularly in the freight forwarding industry.

Prior to conducting dawn raids, the FCCPC is required to obtain a warrant from the Judge of the Nigerian Federal Court of Appeal. Under section 29 of the FCCPA, such a warrant permits the FCCPC to:

  • enter and search the place or premises specified on one occasion within 30 days of issue at a reasonable time;
  • use reasonable assistance to do so;
  • use as much force as is necessary to gain entry or breaking open any article or thing;
  • search and remove documents or anything that may be considered relevant to the investigation;
  • make copies of documents that may be considered relevant to the investigation; and
  • to require any person to reproduce or assist in providing relevant information.

The FCCPC is only permitted to conduct a search without a warrant if it has reason to believe that an entity has contravened the FCCPA or any related Regulations. In this instance, a sworn affidavit from the Executive Vice Chairman will be required.

During the “fireside chat”, Currie explored the FCCPC’s due process and procedural fairness standards that would ordinarily be followed by the FCCPC during such investigations. In response, Ojugo mentioned how the FCCPC will either institute investigations on its own initiative or following receipts of third party complaints. With regards to the latter, Ojugo noted that the FCCPC will usually carry out surveillance in order to verify the intel they receive. Ojugo explained that the FCCPC makes use of these types of procedures, as opposed to requesting information or documents, as the FCCPC is well aware that market participants will not generally be willing to provide relevant materials that would assist the FCCPC in its investigations.

Ojugo noted that while the FCCPC is given wide investigative powers, it must obtain authorisation by a Judge of the Federal High Court, and moreover that industries and firms can be assured that the FCCPC will not come in as a “bull in a China shop”. Rather, the FCCPC is intent on developing its capacity and understanding relevant markets before taking drastic interventionist measures. The FCCPC aims to maintain order, inform firms of their rights (particularly to legal representation) and aims to maintain coordination and cooperation in executing a search warrant. Furthermore, while the FCCPC is entitled to search personal items, it will only utilise information that is relevant to its investigations. In this regard, Ojugo pointed out that it is a criminal offence to obstruct the FCCPC’s investigation and the FCCPC may choose to prosecute in this instance. Moreover, refusal to cooperate with the FCCPC will serve as an aggravating factor when the FCCPC considers and calculates any resultant administrative penalties.

Overall, the approach the FCCPC has adopted in relation to restrictive practices enforcement encapsulates sophisticated investigative tools and is commendable. One potential risk foreseen in this regard is that the FCCPC retains possession of all information as opposed to a third party.

Leniency Policy, Penalty Guidelines, Criminal Sanctions

An important discussion point during the fireside chat related to the FCCPC’s approach in relation to leniency, penalties and criminal sanctions.

  • Leniency Policy

According to regulation 26 of the FCCPC Restrictive Agreements and Trade Practices Regulations (the “RATPR”), any party which is involved in a restrictive agreement or trade practice which is in contravention of the FCCPA may apply for immunity from sanctions or for reduced sanctions under the FCCPC’s Leniency Rules. While the RATPR refer to Leniency Rules, it is to be noted that these are not yet available. It is expected that the FCCPC will introduce a formal set of rules with regards to leniency in due course. Currently, the FCCPA does cater for leniency albeit on an informal basis. In this regard, the FCCPC has the discretion to grant immunity and does so to a party who is the first to submit evidence that will assist the FCCPC in its investigation. Moreover, cooperation with the FCCPC may result in it deciding to lessen the administrative penalty which is ultimately levied against the infringing but disclosing party. Furthermore, the FCCPC requires an infringing party to make a full disclosure and admit their liability by way of a written undertaking. However, Ojugo notes that even if a party enters into cooperation with the FCCPC, it does not necessarily mean that such a party is free from prosecution. Ojugo suggested that the FCCPC would require an admission of guilt and full disclosure from alleged offenders in order for the FCCPC to consider providing such an offender with leniency. However, the FCCPC retains discretion in deciding whether leniency is provided. There is a foreseen risk in this regard. Parties who allegedly contravene the FCCPA would have to provide a full disclosure of their conduct if they wish to be granted immunity but immunity is not guaranteed and parties may still be liable for criminal prosecution.

  • Penalty Guidelines

With regards to penalties, the FCCPA includes penalties for specific offences, namely price-fixing, conspiracy and bid-rigging. As mentioned above, the FCCPC recently published Regulations regarding the calculation of administrative penalties. Oluyode confirmed that the formula for calculating administrative penalties is complicated and cannot be done by parties alone. When deciding on a penalty, the FCCPC will utilise mitigating and aggravating factors in order to determine a party’s liability, and ultimately retains the discretion when deciding on the ultimate administrative penalty to be levied. As such, it is imperative that parties cooperate fully with the FCCPC as this will likely work in their favour, depending on the nature of the offence. Oluyode also noted that whether a global firm or a local firm is fined will depend on the circumstances of each case and which firm has caused the violation. The FCCPC will likely fine a firm on its worldwide turnover in an instance where it is the global firm who engages in or causes contraventions of the FCCPA. Local turnover is to be used when the local firm engages in or causes a contravention.

  • Criminal Sanctions

The FPPCA does make provision for criminal offences for competition related violations. In this regard, the FCCPC will exercise its discretion in deciding whether to prosecute criminal offences per section 113(2) of the FFCPA wherein the FCCPC is given powers to prosecute or to refer violations of criminal offences under the FCCPA to the Attorney-General of the Federation and the Minister for Justice. It is, however, the Nigerian courts who are tasked with convicting the crime.

Merger Control

The FCCPC is responsible for analysing merger transactions to prevent any negative impacts on competition arising as a result thereof. It has implemented a suspensory merger regime. Currently, the FCCPC has not rejected any mergers but has approved various mergers subject to structural and behavioural conditions. Currie commended the FCCPC on the implementation of its online merger notification portal which it implemented as a result of the Covid-19 pandemic. It allows parties to notify their mergers and take part in pre-consultation notifications with the FCCPC in an efficient and sophisticated manner. Oluyode noted that since its implementation, the running of the portal has been smooth and merger notifications have been received through the portal.

In the past year, the FCCPC has made significant development in merger control by publishing the various Regulations and Guidelines, which are accessible here on the FCCPC website. The FCCPC has also catered for a Negative Clearance procedure allows merger parties to ascertain clarity on whether their transaction will meet the definition of a merger and whether it must be notified to the FCCPC. The FCCPC recognises that consumer protection requires a joint responsibility by different regulators and agencies. It intended to provide for regulatory overlap in order to ensure complete coverage and protection of consumers. As such, while the FCCPC bears the responsibility of overall oversight over consumer protection, it intends to develop strategic alliances and encourages collaboration with different sector regulators.

 Section 92 of the FCCPA provides that a merger occurs when “one or more undertakings directly or indirectly acquire or establish direct or indirect control over the whole or part of the business of another undertaking” and may occur through the purchase or lease of shares; an interest in assets of an undertaking; the amalgamation or other combination with the undertaking; or a joint venture. Notifiable mergers must meet the above mentioned definition of a merger as well as meet the relevant merger thresholds set by the FCCPC. Mergers will be notifiable either where the parties to the merger in Nigeria have an annual turnover of above NGN 1 billion in the year preceding the merger; or where the annual turnover of the Nigerian target firm was more than NGN 500 million in the year preceding the merger. Mergers which do not meet the above threshold are classified as small mergers and need not notify their transaction, although section 95(3) of the FCCPC provides that within six months of the implementation of the merger, the FCCPC may require notification if it is of the opinion that the merger may substantially prevent or lessen competition in the market.

Mergers that meet the thresholds must obtain the FCCPC’s permission prior to implementation of the merger. As mentioned above, small mergers may be implemented without prior permission unless otherwise stipulated by the FCCPC. Oluyode clarified that while previously there was some confusion regarding the filing fees of foreign-to-foreign mergers, the FCCPC requires only the Nigerian local turnover to be used to calculate a filing fee.

In this regard, foreign-to-foreign merger approval is required by the FCCPC where a transaction taking place outside of Nigeria will have the effect of altering the control of a business, any part of a business or any asset of a business existing in Nigeria.

Of increasing importance in African antitrust law is the consideration of public interest factors in merger notifications. While the FCCPC representatives noted that the conditions the FCCPC has already imposed have related mainly to competition-based concerns, as opposed to public interest concerns, this does not mean that the FCCPC does not regard public interest concerns as important. The FCCPA prescribes that the FCCPC will consider whether a transaction can be justified on substantial public interest grounds. In this regard, the FCCPC will consider the factors in section 94(4) of the FCCPA, namely: the effect on a particular industrial sector or region; employment; the ability of national industries to compete in international markets; as well as the ability of small and medium scale enterprises to become competitive. Oluyode confirmed that the Minister of Trade, Industry and Investment may, at any point in time during a merger analysis, make his own representations concerning substantial and merger-specific public interest concerns which will be considered by the FCCPC.

Currently, the FCCPC has not published any of its decisions, however, it intends to begin publishing  its decisions on its website in the course of 2022 for public access.

What to expect going forward:

The FCCPC is set out for success, particularly having regard to the wide range of precedent available to it. As previously mentioned, the FCCPA was modeled off of South African competition legislation and the FCCPC intends to use the precedent of well-established jurisdictions such as those in Europe, the US and South Africa. Currently, the FCCPC is working on finalising its draft regulations and it is important that this is done timeously for the purposes of attaining clarity.

With regards to the extent to which parties who want to attain immunity from the FCCPC must admit their liability,  Currie noted that in many jurisdictions there is question on whether an admission of guilt is required or whether parties should be permitted to pay a penalty without a formal admission of guilt in their settlement. Often, the latter is a preferred option as parties usually prefer to pay a penalty to avoid the costs of litigation and civil follow-on damages. In response, Ojugo noted that as it stands, the FCCPC currently insists that parties take absolute responsibility for their actions. As a result, admission is an absolute requirement if a violating party wishes to benefit from the FCCPC’s leniency program. It remains to be seen whether an admission of guilt will continue to remain an absolute requirement. This will likely be addressed in the FCCPC’s Leniency Rules once they are published.

[Michael-James Currie is a competition lawyer and Director at Primerio. He serves as the Global Law Expert for Competition Law in Nigeria and is considered a leading competition lawyer across Africa including Best Lawyers for Competition Law in South Africa. He can be contacted at m.currie@primerio.international]

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dominance, public-interest, South Africa

Concentration and Participation in the South African Economy: Levels and Trends – SACC Publishes Report

By Michael-James Currie & Gina Lodolo

On 7 December 2021, the Minister of Trade, Industry and Competition, Ebrahim Patel released a report titled “Measuring concentration and participation in the South African Economy: Levels and Trends”, accessible here (“Concentration Report”). This Concentration Report is the first of many as the Minster undertook to update the report bi-annually from hereon out.

The theme of the Concentration Report is centered on identifying and remedying:

  • Economic levels and trends that are skewed and don’t reflect South Africa’s population demographic; and
  • Entrenched leaders in certain sectors, which creates “inefficient concentration” by setting high barriers to entry thereby reducing competition, which, according to the Concentration Report, can lead to higher prices and lower investment in South Africa.

The Concentration Report highlights that concentrated markets are of a rising concern internationally, however, specifically in the South African context, the apartheid era created dominant firms that persist and prevent historically excluded persons from participating and gaining market share.

The Competition Commission (“SACC”) does however note that concentration does not automatically mean there is a lack of competition and there may be many instances where concentration will be for the benefit of the consumer and pro-competitive. In this regard pro-competitive concentration can be seen when innovation creates increased market size and economies of scale reduce prices for consumers. Further, the SACC notes that there are still gaps in the data, which will be addressed in the subsequent reports.

The Concentration Report highlights that the SACC will hereinafter be concentrating its efforts on markets that have been identified to contain a role player that is presumed dominant. In this regard, the sectors that have been identified as requiring increased scrutiny are:

  • Farming inputs;
  • Agro-processing;
  • Sin (alcohol and tobacco) industries;
  • Healthcare;
  • Communications;
  • Upstream steel value; and
  • Financial services

This increased scrutiny will be seen particularly in industries that require licenses to operate. This is of concern to the SACC because licensing can be used as a mechanism to spread out ownership, which may be curtailed by a merger, and the SACC has seen increased merger activity particularly in industries characterized by licensing requirements.

To conclude, it is vital to take cognizance of this Concentration Report because the SACC has highlighted that it will form the basis of strategic enforcement of the Competition Act 18 of 2018 (“Act”) and will lay the path for policy centered on a concentrated economy.  In this regard, we foresee closer scrutiny of role players with large market shares in the years to come, especially those players that are presumed to be dominant or expressly mentioned in the Concentration Report.

A further challenge that the Commission faces in tackling perceived high-levels of concentration, is balancing the clear socio-economic objectives with competition law goals and consumer welfare enhancing conduct. Although the Report acknowledges that high concentration does not mean the market is anti-competitive, the general policy of the Report is clearly aimed as protecting or promoting a designated group of competitors as opposed to the competitive process itself. This creates an inherent policy tension and requires very clear, transparent and quantifiable trade-offs.

As the Constitutional Court recently affirmed in the Mediclinic case, higher prices to consumers is not in the public interest. The converse is of course also true. Intervention in markets which may lead to adverse effects on consumer welfare would need to be weighed against the objective of “opening up” the market. Where healthy and efficient entry is permissible, that may well be consumer welfare enhancing but if remedial actions are deigned to simply protect inefficient market participants then interventionist measures are likely to amount to nothing more than a tax on large players which either ultimately gets passed on to consumers or discourages investment. It is absolutely critical to South Africa’s economy and to the integrity of the competition law regime that the latter consequences do not materialize.

You can access the summary report here: https://www.compcom.co.za/wp-content/uploads/2021/12/Concentration-Tracker-Summary-Report.pdf

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AAT exclusive, cartels, COMESA, commissioners, exclusivity, Meet the Enforcers, RPM

New CCC Chief addresses World Competition Day, lays out future of COMESA antitrust policy

As we previously reported, long-time COMESA Competition Commission executive, Dr. Willard Mwemba, was recently promoted to his new role of permanent CEO of the CCC, after having been appointed Acting Director in February of this year. In this new capacity, he recently gave a thus-far unreported speech on the occasion of “World Competition Day” on December 5th, 2021.

In his short address, Dr. Mwemba lays out the mid-term future he envisions for the antitrust policy under his aegis in the Common Market, as follows.

Highlighting the importance of competition law for efficient and fair markets, with the goal of benefiting businesses (as opposed to being perceived as an impediment to business interests), Mwemba mentions key building blocks of the CCC’s enforcement going forward. These include resale-price maintenance and exclusive-dealing enforcement (around 1-1:30 in the little-known video, which has thus far only garnered two dozen views on the YouTube platform and is not yet published on the CCC’s own web site). He then moves on to merger regulation (2:45 onward), and further discusses the importance of the effectiveness of the actual competition law itself — noting that the CCC plans to amend its Regulations and Guidelines within the next year (3:40). Noting that the CCC cannot undertake this process very well alone, Mwemba highlights the cooperative approach of the Commission, partnering with and relying on other groups and stakeholders (such as the COMESA Women in Business group, OECD, and others).

Mwemba notes that the CCC’s “focus for the year 2022 will be on strict enforcement, especially against blatant anti-competitive conduct and blatant violations of the COMESA Competition Regulations, and in this case I mean cartels.  It is said that cartels are the supreme evil of antitrust … because it robs consumers, government, and businesses of huge sums…  So in line with this theme, our focus for 2022 shall be on cartels, and we shall make sure that we weed out all possible or potential cartels operating in the Common Market.”

The CCC chief concludes his address by saying that competition authorities “are not there to frustrate businesses, we are not the enemy of business”; instead, he sees the CCC’s role to ensure that markets operate fairly for all — a welcome reminder to the southern and eastern African business community to understand and embrace the precepts of antitrust law as an efficiency-enhancing mechanism for trading in the Common Market.

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