COMESA issues antitrust RFP for comment & review project, re-releases 5 draft Guidelines

COMESA Competition Commission logo

COMESA’s Competition Commission’s (“CCC”) has issued a Request for Proposal to conduct a comprehensive review of its previously-released five draft competition GuidelinesIn doing so, the CCC re-released the drafts for public review and comment a second time.

Yesterday (Aug. 26, 2013), the CCC published a Request for Proposal to help the agency hold workshops to aid in a comprehensive review of the key COMESA Competition Regulations and Rules / (2).  It will be interesting to see which consultancy submits the winning bid (and whether it will be one from within or outside COMESA!) and what its proposal for the review project will look like.

The topics covered by the Guidelines to be reviewed are:

  1. Mergers
  2. Art. 18 (Abuse of Dominance)
  3. Public Interest
  4. Art. 16 & 19 (horizontal and vertical practices)
  5. Market Definition

We commend the CCC for not only publishing its Guidelines in draft form prior to finalization, but for following international best practices by engaging in what promises to be a substantive and professionally-run review project, akin to the U.S. and EU enforcement agencies.

For what it’s worth, some of our observations on the Guidelines are below.

  • The CCC explicitly endorses a collective-dominance theory of harm in its Dominance Guideline.  A concept largely shunned in the United States (“shared monopoly”), collective dominance is rarely used but admittedly recognized by the EU courts and competition authorities.
  • The Merger Assessment Guideline gives the formal rationale underlying the mystifyingly low “zero-dollar threshold” problem that has plagued COMESA’s CCC since its inception: the threshold for notification has been set at zero “because different Member States are at different levels of economic development and hence a realistic threshold can only be determined after the Regulation has been tested on the market”.  Notably, the authority also predicts in this document that “the threshold shall be raised after a period of implementation of the Regulation” — a move that cannot come too soon and that should not come as any surprise to readers of this blog or to practitioners and parties, which have had to deal with outsized notification-fee demands by the agency for transactions with low to no revenues in the COMESA zone in the past.
  • Lastly, this “regional glue” of the 19-member state organization also underpins a key aspect of the CCC’s Public Interest Guideline , which emphasizes this element of unity across the COMESA region as an important factor in identifying the otherwise “amorphous” concept of public interest.  Rather commendably in this regard, the Competition Commission recognizes the presumption that competition / antitrust should be the “weightiest” of all the conceivable public interest criteria that may be raised by parties and/or member states in future proceedings.

As always, we welcome reader input in the comment section below.

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