Month: March 2013

New interim competition chief in Mauritius

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mauritius

The Mauritian Competition Commission named Mrs. Kiran Meetarbhan as new officer-in-charge and its acting head in this 25. March press release.

The release provides:

The CCM today announces that after the departure of the former Executive Director, Dr. Sean F. Ennis, Mrs. Kiran N. Meetarbhan has been appointed as Officer – In – Charge of the Competition Commission, for the time being. Since the inception of the CCM, Mrs. Meetarbhan has been the Deputy Executive Director of the Commission and she has also cumulated the function
of Chief Legal Adviser.
 
Mrs. Meetarbhan has extensive experience in Competition Law and Policy and is recognized as an expert in competition law and Policy for small states, by the Small State Network for Economic Development (SSNED).  She has been involved in the drafting of several legislation including, the Competition Commission Rules of Procedure and the CCM Guidelines.
 
Mrs Meetarbhan is a Barrister at Law and holds a Master in Business Administration and qualification in Accounting from the London Chamber of Commerce.
 
She has been the Manager for Legal Affairs of the Mauritius Offshore Business Activities Authority (MOBAA) in 1997. In 2001, following the setting up of the Financial Services Commission, she continued her career as Executive – Legal until 2003 when she was appointed as Head of Surveillance for Insurance and Pensions. In 2007, after having spent one year at the State Law Office, she was appointed Adviser at the Ministry of Finance and Economic Development until 2009.
 
From October 2011 to April 2012, Mrs Meetarbhan has also worked as an 
International Fellow for the United States Federal Trade Commission.

SACC gets 2 new interim deputy commissioners

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south_africa

According to a statement released by South African Economic Development minister Patel and other online sources (among them polity.org.za and AllAfrica) the South African Competition Commission has appointed two interim deputy commissioners to serve 6-month terms.

The South African Economic Development Department’s statement identifies the two new deputy commissioners as “advocate Oliver Josie and Trudi Makhaya“.

It is noteworthy that both are being recruited from the existing but recently dwindling ranks of the SACC.  We previously reported about one of Ms. Makhaya’s recent competition-focused articles here.

The official statement continues:

“The interim appointments will ensure an uninterrupted service by the Competition Commission, which has a critical role to play in advancing an inclusive economy, promoting competition, combating abuse of market power and supporting job creation and small business development”.

S.A. Competition Tribunal confirms 2 new settlements

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south_africa

South Africa’s highest governmental competition authority, the Competition Tribunal, has approved two settlement agreements reached by the lower Competition Commission with Air Products South Africa and MVA Bricks / MVA Stene, respectively.

These relate to collusive behaviour in various business sectors, including the building sector which had been investigated by the antitrust watchdog for an extensive period of time.

The former settlement requires Air Products to pay a penalty of almost R2.8 million (about USD300,000) for purported market allocation between it and Sasol Chemical Industries in the industrial gases market. The undertaking published a press release, noting that:

“Air Products has agreed to amend the suite of agreements with Sasol to remove any provisions that contravene the Competition Act; to develop, implement and monitor a (renewed and enhanced) competition law compliance programme incorporating corporate governance designed to ensure that its employees, management, directors and agents do not engage in future contraventions of the Competition Act; and to refrain from engaging in anti-competitive conduct in the future.

“Air Products intends to implement further internal measures to inculcate an increased awareness of the Competition Act and to ensure compliance with the competition laws of South Africa going forward, to ensure that no further inadvertent contraventions of the Competition Act take place.”

The latter settlement with MVA Bricks calls for a R672 565 penalty for collusion between MVA and Aveng Africa in the market for generic paving blocks.

COMESA receives first global merger notification

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COMESA old flag color
Once more, big news out of southern Africa. According to a notice published on COMESA’s web site, the Competition Commission (“CCC”) has received its first merger filing. And it is not merely any old filing — rather, two large global consumer electronics players, Philips and Funai, are the parties to this virginal transaction being notified to the CCC. As the notice points out in its aptly-named (yet somehow almost ‘cute’, if there is such a thing as cute in competition law) title, it constitutes “Merger notice no. 1”.

With the CCC numbering these filings sequentially (based on all appearances), one can’t help but wonder how many more of these notices will we see in the near future? Will the number reach 2 or 3 digits in the first year of operation of this young competition watchdog? After all, as we pointed out previously on this blog, the scope and reach of the (suspensory!) COMESA merger regime are extremely broad and would presumably cover hundreds of transactions similar to the now-notified first deal…

As background to the transaction, neither party apparently operates on its own in the COMESA jurisdictional countries. They merely have sales via distributors and remote agents. An article in the Kenyan paper “Daily Nation” mentions that the parties had announced in January (right around the time that COMESA’s CCC became operational) that Philips would be selling its remaining audiovisual business to Funai as part of a changing business strategy.

Here’s the upshot for antitrust lawyers and parties to future transactions with a potential impact in any of the COMESA member states: the mere fact of this notification legitimizes the entire COMESA regime. This is all the more true, as the parties are two global and important players, with presumptively excellent legal competition counsel (who must have advised that a filing with the CCC would be required, if not advantageous).

My take: The fact that this rather important (and moreover rather remote, for COMESA jurisdictional purposes!) deal constitutes “Merger notice no. 1” is an absolute stroke of luck for the CCC. It lends serious credibility to its legitimacy.

Public interest criteria and competition law

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south_africa

The S.A. Competition Commission‘s Trudi Makhaya (LinkedIn and Twitter) posits in this opinion piece in the South African “Business Day“ that an effective antitrust / competition-law policy can be seen “as an exercise in ’embedded autonomy’.”

Anti-competitive restraints, due to cartels or monopolistic overcharges or output restrictions, have a (relatively) more serious effect on poorer elements of the country’s economy than on the wealthier parts of society, Makhaya argues.  This fact is reflected in the SACC’s “prioritisation framework“, which represents one of the policy tools used by the South African competition authorities that is decidedly outside the “traditional” (read: occidental, euro-U.S. centric) approach to antitrust matters.  In the latter, solely economic (as opposed to social) factors are deemed to play a role that merits the attention by the enforcement agencies.

In a recent roundtable interview with Global Competition Review, AfricanAntitrust.com‘s own editor, John Oxenham, pointed out a parallel facet of merger review in South Africa, stating: “More often developing regimes face difficulties in ensuring their legitimacy or face glaring socio-economic challenges when considering antitrust issues. In South Africa for instance, historical imbalances continue to force the government on a broad-based growth path. The particular public interest criteria which are found in merger control and which the South African authorities are enjoined to use in merger control have, somewhat uniquely, been utilised by South African government departments in intervening in cross-border mergers.”

In light of the eurozone’s economic turmoil and the United States’ rather stagnant emergence (if any) from its recession, the notion of social / public-interest criteria in antitrust law are quite a timely subject.  We are eager to hear our readers’ opinions on this topic…

Competition Authority of Kenya wrests right to control M&A from COMESA.

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(See also our prior reporting here: https://africanantitrust.com/2013/01/31/kenyan-competition-authoritys-comesa-jurisdiction-questions/)

COMESA old flag colorkenya
The Competition Authority of Kenya (“CAK”) has won the first round in its apparent jurisdictional battle against COMESA to control acquisition of shares, interest or assets among local firms, ending two months of uncertainty as to who the regulatory authority was for dealmakers. Kenyan Attorney General Githu Muigai has given the CAK the authority to act as the sole agency with the mandate to administer and clear local Kenyan mergers and acquisitions.

This power purports to shield, at least temporarily, local firms from the COMESA competition laws. Under the multi-state competition regime, firms engaging in certain mergers and acquisitions with an effect in two or more member states are required to seek clearance from COMESA’s Competition Commission, a process that comes with significant costs and time delays not expected to the same extent with the CAK procedure.

South African market-inquiry provision comes into effect

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south_africa

President Jacob Zuma has signed the market inquiry provisions of the South African Competition Amendment Act of 2009 (“Amendment Act”) into force today, 8 March 2013.

The president set 1 April 2013, as the date on which section 6 of the Amendment Act will become effective.

Section 6 empowers the S.A. Competition Commission (“Commission”) to conduct an inquiry into the general state of competition in any market in South Africa, without referring to specific prohibited conduct or a particular firm.  Under this provision, the Commission may initiate a market inquiry when it has reason to believe that any features of an identified market may be distorting or restricting competition in that market, e.g., where a market is not functioning optimally, but where no prohibited conduct, such as cartel activity, has been identified.

Section 6 also regulates how the Commission may conduct such market inquiries.  More specifically, the Commission may use its powers to request information from firms but may not use its search and seizure (i.e., dawn raid) powers to gather information for a market inquiry.

At the conclusion of the market inquiry, the Commission must publish its findings and may also make recommendations to the Minister of Trade and Industry or other regulatory authorities relating to any competition matters identified.

GCR BRICS roundtable interview with editor John Oxenham

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For a lively discussion regarding the emergence of BRICS jurisdictions in the competition-law arena, please see our editor John Oxenham’s interview with Global Competition Review / GCR, here.

COMESA’s “opening hours”: clarifying timing rules

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COMESA old flag color
As to the timing of submissions, COMESA’s Competition Rule 3 provides that when a time period runs out on a weekend or holiday (Saturday, Sunday or other day the CCC is closed) the submission may be made the following day (not a Saturday, Sunday or other closure day).  The Competition Regulations do not have any parallel provision regarding timing.

     So do the Rules govern the Regs?

According to an official from the CCC, the Rules are promulgated pursuant to the Regulations.  As they are designed to facilitate the operation of the Regulations, the Rule 3 computation of time is likewise applicable to the Regulations (where not otherwise specified).

Therefore, no need to file prior to the expiration on a weekend day — rather, file immediately afterwards.