New AAT interview series highlights individual African competition enforcers

In the first instalment of our new Meet the Enforcers series, we speak with Rajeev Hasnah, CFA, who is a sitting Commissioner of the COMESA Competition Commission.  In our exclusive interview, we discuss the CCC’s merger review practice, its revised Guidelines, young history and achievements, and seek practitioner guidance.

According to me, it is the fact that the CCC is effectively enforcing the COMESA Competition Regulations since it started operating in January 2013.  It is indeed a commendable achievement given that the current Board of Commissioners sworn-in in October 2011.  In 2012, the CCC worked on the drafting of the guidelines, in consultation with various stakeholders, and under the advice of other competition experts.

The institution also established a good working relationship with national authorities across COMESA and beyond, and proved its credibility and effectiveness as a regional competition authority within the business and legal communities globally.  The rather high number of merger notifications with a COMESA dimension already adjudicated to-date (around 50) is testimony to the success of the CCC being an effective competition law enforcer in its still early days.

Nowadays it is getting harder to talk about differences in any field of economic activity in this increasingly globalised world.  In my view, the key principles and the application of the Competition Law in the COMESA region do not differ significantly either from that of the national authorities or other major jurisdictions across the globe.  The assessment of “substantial lessening of competition” as the underlying fundamental test in merger reviews is at the core of the evaluation conducted by the CCC as well.

It is definitely not an easy feat to enforce the COMESA Competition Regulations across 19 different countries, each with its own economic, legal and cultural environments.  Yet, under the leadership of the current Chairman, Alex Kububa and Director/CEO of the CCC, George Lipimile, a good working relationship and collaboration has been established with the different national authorities across the COMESA region, which facilitates an effective enforcement of the Competition Regulations.   This also ensures that the CCC has a good perspective of the individual local realities, which is no doubt a key element to assess the impact on competition at the regional level.

It is not uncommon that an authority reviews its guidelines as it gains experience in enforcing the law.  Any changes or further clarifications are geared toward ensuring that the business and legal communities as well as competition economics experts have a good understanding of how the Regulations are enforced by the CCC.  This indeed shows that the CCC stands ready to ensure an improved clarity of its enforcement of the Competition Regulations among its key stakeholders.

The relevant paragraphs defining the verb “to operate” in the Merger Guidelines, should not be construed as a review of the merger notification thresholds per se.  The latter has its own procedures regarding any likely review.  The definition in the Merger Guidelines is rather to ascertain whether the said undertaking is construed to be effectively operating in a Member State or not.

Taking into consideration the rise in the enactment and enforcement of a competition policy regime across various jurisdictions and at the level of regional trading blocs as well, one can safely say that a competition authority is here to stay and to enforce the law as prescribed.

One of the key considerations in doing business is a proper assessment of the risks the undertaking faces or could potentially face and the implementation of a suitable actionplan to deal with these risks.  I believe that non-notification of a notifiable COMESA dimension merger to the CCC should not be construed as carrying a low probability of being detected by the CCC and certainly not a low impact one for the undertaking.

Some jurisdictions consider public interests as important, while some don’t.  This is normally provided for or not in the respective laws, and whichever is the case, as adjudicators, we need to follow what is prescribed in the Regulations.

It is also important to note that in practice, the enforcement of competition law can be defined as being the conduct of economic analysis within a legal framework.  Both the economic analysis and legal framework evolve accordingly in line with the development of the jurisdiction’s economy.  We can take the examples of more mature competition policy regimes which started with the consideration of non-competition issues in merger review, to then afterwards moving to assessing only competition matters.  As such, each jurisdiction has its own specificities that it needs to take into consideration, though these are bound to evolve with time.

I am an economist and a Chartered Financial Analyst (CFA) by training, and prior to joining the antitrust world I was an investment professional.  Four years ago I had the choice between acquiring experience in private equity or joining the nascent competition law enforcement team of the Competition Commission of Mauritius as its Chief Economist/Deputy Executive Director, working with the then Executive Director, John Davies.  I chose the latter for its excellent combination of applied microeconomics and law.

I started as a macroeconomist working in London for an economic consultancy firm in the city, where I was advising traders and asset managers.  I then moved on to financial investing in an investment management firm and to corporate finance in one of the largest conglomerates in Mauritius.  So I came to the antitrust world as a business/investment practitioner with a strong background and experience in applied economic and financial analysis.

Having seen the world from the private sector side, I acquired an edge in the application of competition economics in my previous role as a Chief Economist/Deputy Executive Director and as a current Commissioner at the COMESA Competition Commission.

Having previously led the Competition Culture project for the International Competition Network (ICN) Advocacy Working Group (AWG), I am now one of the strong proponents of the importance of advocacy to develop and maintain a strong competition culture within society.

Ensuring that advocacy activities are properly designed and tailored to meet the requirements of the target group is crucial.  Equally important is to ability to communicate in a very simple and easy to understand language, adapted to meeting the target audience’s expectations.