If you haven’t registered yet, there are a few more hours to go before the Primerio and Franklin société d’avocats (Law Firm) first, of a series, webinar on Regulatory and Investment Risks in Africa kicks off at 3pm CET/SAST: 9am ET on 13 October 2021.
This session will explore antitrust developments in Southern and Western Africa and will be held in English and in French.
The Competition Authority of Kenya (CAK, or the Authority) issued a public notice to members of professional associations who are seeking to set minimum chargeable fees for their members notifying them that they need to comply with the provisions of the Competition Act. The Competition Act (the Act) provides for parties to file an application for an exemption on behalf of any association whose agreements may contravene the Act. Notably, the determination of an exemption application factors in public-interest considerations. In addition to this, when an exemption is granted, the same is not perpetual the period of validity of the exemption is at the discretion of the Authority.
Regulation of professional bodies is governed by different sources under Kenyan law. This can occur either through statutory law or rules issued by the professional bodies themselves. In Kenya we have professional bodies regulated by statute and others are wholly self-regulatory. This in turn brings in the issue of self-regulation and regulation by statute. As such, if a professional body is allowed by law to prescribe fees applicable for certain services offered by members of that association. Therefore, in such an instance then the Authority cannot fault such an association because the actions of the association are sanctioned by the law. In such an instance, the correct course of action would be the Authority to first seek intervention from the courts to declare such activities authorized by the law as unlawful and if successful, then any future activities of the association that involve the prescription of fees will be subject to an exemption application.
In 2017, the Institute of Certified Public Accountants of Kenya (ICPAK) made an exemption application in regard to prescribing of fees charged by its members and the same was rejected by the Authority. Following the rejection of their application ICPAK has opted to bypass the Authority and has begun to push for the prescription of the fees through the law and in 2020, they published the proposed remuneration order. Similarly in 2020, the Engineers through the Engineers board of Kenya also have the draft scale of fees for professional engineering services.
As mentioned above, there is the issue of self-regulation versus regulation by statute. Relevant Kenyan law includes the Statutory Instruments Act, which provides for the making, scrutiny, publication and operation of statutory instruments. Statutory instruments include but are not limited to rules, guidelines or by-laws made in execution of a power conferred by an existing statute. It is important to mention the Statutory Instruments Act because under this law, all statutory instruments are required to carry out consultations with the Authority to establish whether the proposed instrument restricts competition. It is however unclear whether the opinion of the Authority matters because despite complying with this requirement. What would be interesting to watch for now is whether ICPAK is successful in its quest for setting of professional fees there being a gazette notice where the CAK rejected its exemption application over the same subject matter.
Associations that self-regulate fall squarely within the jurisdiction of the CAK and that is why the Authority has in the past successfully pursued contraventions by trade associations like in 2016, the association members in the advertising industry who were involved in price fixing were penalized. This can be compared to the activities of the Law Society of Kenya which are governed by statutes which empower it to recommend to the Chief Justice fees to be charged in relation to certain services offered by its members.
In conclusion, while the CAK may be justified in its quest to reign in the behavior of professional associations that are engaged in conduct that may amount to price-fixing, there needs to be a balance in the approach the CAK takes, where protection of fair remuneration is taken into account while preventing what would amount to abusive conduct. That being said, the CAK should also consider challenging the other laws that are in place that allow the professional associations to engage in conduct that it believes should be subject to an exemption application.
Our good friends at CONCURRENCES will be hosting the third instalment of their global antitrust conference next Thursday, September 23rd:
The 2021 edition of Concurrences annual “Global Antitrust Hot Topics” conference will be held online, with a series of 3 webinars from Tuesday, September 21st to Thursday, September 23rd.
The third and last webinar will take place on Thursday 23 September from 3:30pm CEST / 9:30am EDT with a panel focusing on key issues for in-house counsel in global antitrust, merger enforcement and emerging regimes.
The conference will then close with a virtual reception where speakers and participants will be able to exchange their thoughts on this 9th edition.
Speakers will include:
Hanna Danwall Head of Competition Law Carlsberg
Nick Hendon Vice President Mergers & Acquisitions Olin
Following the 3rd panel, Concurrences is inviting you to the closing reception of this conference. It will allow you to exchange views with the participants and speakers involved in the different webinars of this edition.
This reception will take place via the platform Remo. During this virtual event, you will be able to speak or chat with other attendees and navigate from table to table on a virtual hotel floor.
This virtual panel will also be the opportunity for you to interact with the speakers during the live Q&A session at the end of the panel discussion.
The COMESA Competition Commission (“CCC”) is stepping up to the plate in 2021, and nobody can deny it. The days of ignoring the CCC’s jurisdiction over M&A deals, joint ventures, and even anti-competitive agreements in the Common Market for Eastern and Southern Africa are decidedly over, as the antitrust enforcer has significantly increased its presence and visibility in the legal and business communities over the past 6 months.
In its latest bid to be considered by the antitrust community to rank among the leading African competition-law agencies, the CCC has issued its first-ever failure-to-notify fine on mobile-phone infrastructure providers Helios Towers Limited (“Helios Towers”), Madagascar Towers S.A (“Madagascar Towers”) and Malawi Towers Limited (“Malawi Towers”) for failure to notify the transaction within the prescribed 30-day time period under Article 24(1) of the COMESA Competition Regulations of 2004. Helios Towers is a UK-based telecommunications company, listed on the LSE and a constituent of the FTSE 250 stock index; it operates in the Democratic Republic of Congo within the COMESA region.
As we previously reported in 2017 (here and here), to AAT’s knowledge the only other reported transaction that came close to being fined for a failure to be notified by the merging parties was the paints deal between Akzo Nobel and Sadolin / Crown Paints: “In that transaction, the parties boldly proclaimed that the CCC simply did not have any statutory jurisdiction at all,” says attorney Andreas Stargard, an expert in African competition law. Indeed, four years ago, Akzo’s spokespeople flatly claimed that their deal fell “outside the CCC’s purview,” as “[w]e do not have a merger going on; we are a fully independent plant, so COMESA does not come into the picture at all.”
The COMESA’s CID observed that the Parties should have filed their merger notification on 22nd April 2021 in accordance with Article 24 (1) of the Regulations, but breached it.
Interestingly, as to the comparatively low amount of the fine, the CCC took into account significant mitigating aspects pursuant to Article 26(6), including these five considerations:
The breach was unintentional;
The delay in filing did not yield any “discernible advantage” to the Parties;
The breach did not result in any loss or harm in the market;
The Parties cooperated with the Commission from the time they were engaged leading to the merger being notified on 2nd July 2021 following their initial engagement; and
The Parties have no record of contravention with the Regulations.
Therefore, the CCC merely imposed a 0.05% fine (instead of the statutory maximum under Art. 24(5) of 10% of the parties’ turnover in the preceding calendar year in the common market). AfricanAntitrust.com confirmed this 0.05% figure with a CCC executive, clarifying that this percentage amounted to a fine of U.S. $102,101. Mr. Stargard noted his understanding that the CCC’s positioning of this fine at the extremely low end of the permissible spectrum denotes not only the parties’ significant cooperation and other mitigating factors, outlined above, but also represents a nod by the Commission to the fact that this is the first-ever enforcement action of its kind, and therefore “should not set a precedent in both substance and amount.”
The Parties may appeal the decision (available to AAT readers here) to the full Board of Commissioners in accordance with Article 15(1)(d) of the Regulations as read together with Rule 24 (e) of the COMESA Competition Rules of 2004.
The Commission’s Registrar, Ms. Meti Disasa, stated that “the fine was the first of a kind for breach of the Regulations. The Commission therefore wishes to remind Undertakings in the Common Market to be cautious of the prescribed timeline for notifying mergers in under Article 24 (1) of the Regulations.” Ms. Disasa warned undertakings operating in the Common Market “to comply with all other parts of the Regulations especially with respect to anti-competitive conduct as the Commission shall henceforth not take lightly any breaches of the regional competition law,” according to the CCC’s press release, also noting that “the decision to fine has no impact on the Commission’s assessment of any competitive effects of the merger, which is still ongoing.”
On the 16th of August 2021, the Competition Authority of Mozambique (“CRA”) made certain vital amendments to its merger filing fees as per Decree no. 77/2021 (“Decree”). The amendments come at a crucial time considering the recent operationalisation of the CRA in Mozambique and long period of time for which the filing fees remained exorbitantly high. Until recently, the fees were inordinately high compared to both the neighbouring countries of Mozambique, as well as those on the broader global spectrum. The amendments consequently hold potential for improvement of the steadily strengthening African mergers and acquisitions market, and it is expected that similar developments will continue to follow.
It is provided in the Decree that the applicable filing fees are now 0.11% of the turnover in the year before filing with a maximum filing fee value of 2.25 million Meticais (approx. R530 000 as the exchange rate stands on 25 August 2021). Before this amendment was passed, Ministerial Decree no. 79/2015 set the applicable filing fee as an exceptionally high 5% of the turnover in the year before filing. This position was highly controversial, and potentially dissuaded potential investors.
An issue which remains unresolved following the publication of the Decree is that of the relevant companies’ turnover. Although the legislative procedure intended to clarify exactly which companies’ turnover should be used to determine the notification fee, it has failed to do so. However, upon interpreting Article 12 of the Competition Law Regulation systematically, it may be concluded that the turnover applicable to the transaction is that realised in Mozambique in the preceding financial year by all of the companies who are party to the deal. Such an interpretation is also consistent with common practice.
As of the 23rd of August, the Decree officially entered into force, an consequently should be applied by the CRA to cases both pending and upcoming, insofar as the filing fee has not yet been paid. This rationale is based on Resolution no. 1/2021 which stipulates that notification is only fully effective once payment of the filing fee has occurred. Thus, various notifications which have been submitted to the CRA, but not yet finalised with the relevant payment due to concerns regarding the high notification fees, are predicted to be paid for and processed in accordance with the modified rates soon.
In an interesting twist, a representative of the last properly remaining centralised economy (the People’s Republic of China) has admonished African nations (specifically South Africa, where he acts as Ambassador) to enhance competition-law enforcement against dominant firms, including Western tech giants.
We observe that his statement is an “interesting” twist, because the Editor was taught over the years in several (perhaps faulty?) history lessons that the PRC itself had been inarguably heavily reliant on government-run monopoly companies for decades.
But let’s cut to the chase of what Mr. Xiaodong is actually saying: his thesis, not exactly ground-breaking in antitrust circles, can be summarised succinctly as “excessive power and influence of technology giants hinder innovation and competition and increases economic inequality.” There!
With regards to the applicability of his thesis to South Africa, the ambassador notes that “Antimonopoly practices also exist in SA. The control over data fees and food prices imposed by big corporations here has safeguarded consumers’ rights and interests. Monopolistic actions in the platform economy is also a matter of grave concern for SA’s Competition Commission. No country can turn a blind eye to the negative externality of the emerging digital economy.”
“Negative externalities…” sound very much like proper Western antitrust-economics-speak. Interesting. However, there is of course an ulterior motive behind this little lesson in competition economics from his excellency, the honorable ambassador. It comes at the end of his “opinion” piece: China would like to do more business in Africa, strengthen its ties, and deepen its influence (including in the area of education – beware!)… In the diplomat’s own words: “China’s high quality economic development brings greater opportunities for Africa’s development. … And China’s current cumulative investment in SA has exceeded $25bn, creating more than 400,000 jobs directly and indirectly in the region and making big contributions to SA’s economic and social development.”
Curious news, perhaps not so much any more after digging deeper. Especially when the interested reader googles (oh yes, coincidentally using that same FAANG company’s services that Mr. Xiadong’s diatribe indirectly disparages here) the simple search term “China – Africa“, the latest news from today’s South China Morning Post is that “China seeks to expand influence in Africa with more digital projects…” — nice coincidence.
On 2 August 2021, the Federal Competition and Consumer Protection Commission (“FCCPC”) made important amendments to the filing fees prescribed in the Merger Review Regulations, 2020 (“Regulations”). The amendments provide much needed clarification with regards to fees payable regarding the filing of a merger in Nigeria, particularly where the merger involves a global acquisition. These amendments come at a crucial time as Nigeria’s merger control regime is fast becoming one of the more active on the African continent.
The amendments clarify that the calculation of the filing fees in respect of transactions which involve a global acquisition is only the turnover attributable to the local component in Nigeria. In other words, where previously it was not clear whether the filing fee was to be calculated on the entire consideration of the global transaction, the amendments clarify that it is only the turnover of the Nigerian component (i.e. the parties’ Nigerian derived turnover) of the transaction which should be used.
The amendments also provide clarity in respect of the turnover which should be used for purposes of calculating the filing fee in respect of Private Investment Entities. The turnover for Private Investment Entities is clarified to be the combined turnover of the Fund (in Nigeria) as well as the target.
Other notable changes to the calculation of merger filing fees include the following:
The percentages used for purposes of calculating the applicable filing fee for the first N500 million increased from 0.3% to 0.45% in respect of both the consideration of the transaction as well as the last combined annual turnover;
The percentages used for purposes of calculating the applicable filing fee for the next N500 million increased from 0.225% to 0.4% in respect of both the consideration of the transaction as well as last combined annual turnover; and
In respect of any sum above N1 billion, the percentage applicable to the consideration of the transaction increased from 0.15% to 0.35%, while the percentage in respect of the annual turnover component decreased quite significantly from 0.75% to 0.35%.
Primerio director, Michael-James Currie, says that these amendments are welcomed as they bring filing fees in Nigeria in line closer in line with international best practice and is likely to positively contribute to the Nigerian merger control regime.
On the 1 June 2021, the South African Competition Commission (SACC) released its media statement announcing the prohibition of ECP Africa’s proposed acquisition of Burger King (South Africa) and Grand Foods Meat Plant Pty (Ltd) from Grand Parade Investments. AAT published a note on this precedent-setting decision here.
Despite finding that the acquisition would not have any likely effect of substantially lessening or preventing competition, the transaction was prohibited as it would result in the merged entity having no ownership by historically disadvantaged persons (HDPs) and workers. In its media statement, the SACC states that both Burger King SA and Grand Foods Meat Plant form part of an empowering entity in which HDP’s have 68% ownership. This ownership stake would decrease to 0% if the transaction were to be approved. In this regard, Tembinkosi Bonakele, chairperson of the SACC, states:
“You had an entity that had quite an impressive transformation profile, and all of that was going to disappear at the stroke of a pen with this transaction.”
Unsurprisingly, Grand Parade Investments, as well as the general public, have responded to the SACC’s decision with discontent.
The topical concerns regarding the prohibition of the acquisition include:
The unintended, prejudicial impact upon black shareholders of sellers / target companies; and
The equally detrimental deterrence of foreign direct investment (FDI) into the Republic of South Africa.
i. Harm to HDP shareholders
Grand Parade Investments had supposedly been attempting to sell Burger King and Grand Foods Meat Plant for a period of 18 months in order to settle debts and pay dividends to its black shareholders, whom had reportedly not received dividends for a number of years. Furthermore, the shareholders would incur even greater harm upon the SACC’s media statement as Grand Parade Investments share price would plummet by 10%, making future dividend payouts ever less likely.
Bonakele argues that the Competition Act cannot waiver in its goal of transformation purely because of the prejudicial impact that a decision may have on individuals.
“This is about the system, it is not about individual shareholders. We are not really concerned about the immediate impact on Joe Soap today, that’s not the criteria.”
ii. Deterring FDI
The decision of the SACC raises varying concerns for foreign investors, and understandably so. The key concerns can be encapsulated into the following: certainty, timing and costs.
Firstly, merger review is subject to ever-evolving standards. In this regard, foreign investors cannot approach a merger with full certainty as to whether it will be approved or not. Moreover, continually changing standards presents increased opportunities of opposition from competition authorities which furthers investor uncertainty. Secondly, subsequent to changing standards and increased opposition, the timing of proposed mergers is significantly lengthened. Lastly, the imposition of non-competition conditions on transactions incurs significant costs on the burden of investors.
These principles of certainty, timing and costs can be considered as the essential elements of a sound merger regime. Ultimately, the SACC’s decision of prohibition strikes at the balance of South Africa’s merger regime by introducing great uncertainty, prolonged timing and greater costs – all of which present themselves as significant areas of concern for foreign investors.
In response to these FDI concerns, Bonakele states that South Africa’s democratic sustainability is of paramount importance and that foreign investors must consider the long-term effects that exclusionary investments would have on the Republic, particularly in regard to transformation and empowerment:
“But it’s not like empowerment imperatives are less important than FDI.”
A potential for reconsideration?
A window for reconsideration of the proposed acquisition presents itself where the merging parties present a better offering of HDP ownership. Bonakele suggests that this is potentially on the table as the parties to the agreement have continued engagement despite the SACC’s decision.
Therefore, the proposed acquisition may eventually find approval where ECP Africa and Grand Parade Investments agree on an improved HDP empowerment plan, of which the SACC is satisfied.
In essence, the SACC’s decision to prohibit the proposed acquisition of Burger King (South Africa) and Grand Foods Meat Plant by ECP Africa has had prejudicial effects upon the seller’s black shareholders.
Further, the decision presents concern for foreign direct investment by striking at the essential elements of a sound merger regime, namely: certainty, timing and costs.
However, the chairperson of the SACC has now noted that the SACC may change its initial decision upon the improvement of empowerment considerations between the parties to the transaction.