The Kenyan antitrust authority, CAK, recently closed its investigation into a classic price-fixing cartel involving the Outdoor Advertisers Association, resulting in a fine of Sh11.64 million (approx. $120,000) imposed on domestic advertising firms for fixing minimum prices of billboard space, reports the Kenya Gazette. The affected companies include Magnate Ventures Limited (Sh5 million), A1 Outdoor Limited (Sh114,000), Live Ad Limited (Sh2.5 million) and Adsite Limited (Sh2.39 million), while four others had already settled with CAK previously (Consumer Link (Sh1.2 million), Look Media (Sh136,000), Firm Bridge Limited (Sh246,400) and Spellman Walkers Limited (Sh45,180)). The remaining four trade association members will be fined forthwith.
Notes Andreas Stargard, a competition practitioner with Primerio Ltd., “[i]n this case — which really represents a classic minimum-price fixing arrangement among trade association members — the billboard owners agreed during a period of less than one year to set a minimum monthly price of Sh160,000 in large Kenyan markets, such as Nairobi. Interestingly, they price-discriminated geographically within their cartel arrangement and fixed the corresponding fees in smaller markets at a slightly lower amount.”
The head of the CAK, Director-GeneralWang’ombe Kariuki, lamented that a trade group was being used to manipulate an otherwise competitive process of market forces yielding market prices, which he believed are approximately 20 to 25% lower than the fixed rates, based on post-investigation pricing. Says Stargard:
“It is interesting to see that the CAK has already followed up on this matter and has noticed an arguably direct empirical result, yielding a beneficial effect of a not insignificant price reduction in advertising costs in Nairobi.”
HOW CAN COMPETITION LAW ENFORCEMENT IN THE DIGITAL ECONOMY HELP IN THE FIGHT AGAINST POVERTY?
By DWA co-founder and visiting AAT author, Amine Mansour* (re-published courtesy of Developing World Antitrust’s editors)
When talking about competition law and poverty alleviation, we may intuitively think about markets involving essential needs. The rise of new sectors may however prompt competition authorities to turn their attention away from these markets. One of those emerging sectors is the digital economy sector. This triggers the question of whether the latter should be a top priority in competition authorities’ agenda. The answer remains unclear and depends mainly on the potential value added to consumers in general and the poor in particular[1].
Should competition authorities in developing countries focus on digital markets?
Obviously, access to computer and technology is not a source of poverty stricto sensu. In the absence of basic needs, strategies focusing on digital sectors may prove meaningless. In practice, the last thing people living in extreme poverty will think about is gaining digital skills. Their immediate needs are embodied in markets offering goods and services which are basic necessities. The approach put forward by several Competition authorities in developing countries corroborates this view. For instance, in South Africa, digital markets are not seen as a top priority. Instead, the South African competition authority focuses on food and agro-processing, infrastructure and construction, banking and intermediate industrial products.
There are however compelling arguments to be made against such position. Most importantly, although access to technology and computers is not a source of poverty, such an access can be a solution to the poverty problem. In fact, closing the digital gap by providing digital skills and making access to technology and Internet easier can help the low income population when acting either as entrepreneurs or consumers. In both cases competition law can play a decisive role.
The low income population acting as consumers
First, when acting as consumers, people with low income can enjoy the benefits of new technology-based entrant. Thanks to lower costs of operation, lower barriers to entry and (almost) infinite buyers, these new operators have changed the competitive landscape by aggressively competing against traditional companies. These features have helped them not only extending existing products and services to low-income consumers but also making new ones available for them. Better yet, in some cases increased competition coming from technology-based companies motivates traditional business forms to adapt their offer to low-income consumers so as to face this new competition and remedy shrinking revenues. Perhaps, the most noteworthy aspect of all these evolutions, is that these new entrants have, in some instances, been able to challenge incumbents’ position by driving prices downward to levels unattainable by traditional companies without scarifying their profitability.
A shining example of all this dynamic is the possibility for low-income consumers to engage, thanks to some mobile companies, in financial transaction without the need to pass through the traditional stationary banking infrastructure. For instance, in Kenya, M-PESA a mobile money transfer service that has over 22 million subscribers[2] and around 40,000 agents (around 2600 Commercial bank branches)[3] changed the life of million of citizens. The service enables clients to deposit cash into their M-PESA accounts, send or transfer money to any other mobile phone user, withdraw cash and complete other financial transactions. A farmer in a remote area in Kenya can send or receive money by simply using his mobile phone. In this way, M-PESA can act as a substitute to personal bank accounts. This experience shows how the digital economy helps overcoming the prohibitive costs of reaching low-income customers and thus raising living standards.
On that basis, we can easily imagine the counter-argument incumbent companies might put forward. In this regard, unfair competition and the need for regulation to preserve policy objectives are often in the forefront. However, there is a great risk that these arguments are simply used to restrict market entry and impede competition from those new players.
In fact, this kind of arguments do not always reflect market reality. For example, in some remote geographic areas, traditional companies and the new ones based on the digital/internet space do not even compete directly against each other. Accordingly, regulation intended to protect policy goals has no role to play given that the affected consumers are out of the reach of the traditional business. In the M-PESA example, it may be possible to argue that any operator engaging in financial transactions should observe the regulatory restrictions that apply to the banking sector in order to ensure that policy objectives such as the stability of the banking system or the protection of consumer savings are preserved. However, applying such a reasoning will leave a large part of consumers with no alternative given the absence of a banking infrastructure in remote areas. The unfair competition and regulation arguments may only hold in cases where consumers are offered alternatives capable of providing an equivalent service.
This shows the need to proceed cautiously by favoring an evidence-based approach to the ex-post use of the regulation argument by incumbent operators. This is however only one of different facets of the interaction between the competitive impact of companies based on the internet-space, the regulatory framework and the repercussions for people with low income[4].
The low income population acting as entrepreneurs
Second, the focus on digital markets as way to alleviate poverty is further justified when low-income people act as entrepreneurs. In fact, digital markets are distinguished from basic good markets in that they may act as an empowering instrument that encourages entrepreneurship.
More precisely, the digitalization of the economy results in an improved access to market information which in turn may benefit entrepreneurs especially the poor whether they intervene in the same market or in a different one. Practice is replete with cases where, for instance, a downstream firm heavily relies for its production/operation on services or products offered by an upstream company operating in a digital market. Similarly, in a traditional and somewhat caricatural way, a small-scale farmer may use VOIP calls to obtain market information or directly contact buyers suppressing the need for a middleman.
However, we can well imagine the disastrous consequences for these small-scale farmers or the downstream firm if mobile operators decide to block access to internet telephony services such as Skype or WhatsApp based on cheap phone calls using VOIP (this is what actually happened in Morocco). In such a case, the digitalization of the economy has clearly contributed to greatly lowering the costs of communication and distribution. However, low income entrepreneurs are prevented from benefiting of these low costs, which are a key input to be able to compete in the market.
The major difficulty here lies in the fact that, when low income people act as entrepreneurs, it is likely that they organize their activities in small structures. This result in relationships and structures favorable to the emergence of exploitative abuses. Keeping digital markets clear from obstructing anticompetitive practices is thus indispensable to ensure that small existing or potential competitors are not prevented from competing. This might not be easily achieved given that competition authorities’ focus is sometimes more on high profile cases.
*Co-editor, Developing World Antitrust
[1] Intervention may also be justified by the institutional significance argument. This significance lies in the fact that those markets are growing ones and challenging the common ways of both doing business and applying competition rules which in turn make it crucial for authorities to intervene by drawing the lines that ensure the right conditions for those market to grow and develop.
[4] For instance, it possible to think of the same problem from an ex-ante point of view highlighting incumbent firms’ efforts to block any re-examination of the regulatory standards that apply to the concerned sector (no relaxation of the quantitative and qualitative restrictions). This aspect has more to do with the advocacy function of competition authorities.
Price-fixing in Kenya is prohibited under the Competition Act No. 12 of 2010 under Section 21 (3) (a) which provides that any agreements, decisions or concerted practices which directly or indirectly fix purchase or selling prices or any other trading condition is prohibited under the Act, unless they are exempt in accordance with the provisions of Section D of Part III.
Part III B further prohibits price-fixing by trade associations under Section 22 (b) (i) which provides that the making, indirectly or directly, of a recommendation by a trade association to its members or to any class of its members which relates to the prices charged, or to be charged by such members, or to any class of members, or to the margins included in the prices, or to the pricing formula used in the calculation of those prices, constitutes a restrictive trade practice under the Act.
Section 29 (1) of the Act further outlines the rules for exemptions in respect of professional associations. It provides that a professional association whose rules contain a restriction that has the effect of preventing, distorting or lessening competition in a market must apply in writing or in the prescribed manner to the Competition Authority for an exemption. Sub-section (2) goes on to explain what factors the Authority considers in order to grant an exemption for a specified period. These include:
Maintenance of professional standards
Maintenance of the ordinary functioning of the profession
Internationally applied norms
Section 29 (5) further gives discretion to the Authority to revoke an exemption in respect of such rules or the relevant part of the rules, at any time, if the Authority considers that any rules, either wholly or in part, should no longer be exempt under this section. For instance, if they no longer promote consumer welfare or do not enhance standards in the profession.
Price setting concerns by Law Society of Kenya, LSK
Professional fees for advocates in Kenya are set by the Chief Justice under the Advocates Act Chapter 16 of the Laws of Kenya. Part IX Section 44 provides that the Chief Justice may by order prescribe and regulate in such manner as he/she thinks fit the remuneration of advocates in respect of all professional business, whether contentious or non-contentious. Sub-section (2) also provides that the Chief Justice may prescribe a scale of rates of commission or percentage in respect of non-contentious business.
However, Section 45 provides that agreements in respect of remuneration may be made between the advocate and the client subject to permissible professional rules under section 46 of the Act. Therefore, as much as the Chief Justice may set professional fees under the Act, there is an opportunity for the advocate and the client to agree on professional fees subject to the Act. Moreover, a client has redress to apply to the courts under Section 45 (2) to set aside or vary such an agreement on grounds that it is harsh, unconscionable, exorbitant or unreasonable according to professional practice. The decision of the court on this matter is final.
The Chief Justice periodically revises the Advocates Remuneration Order which sets out the scale of professional legal fees. In doing so the Chief Justice considers factors such as inflation and the costs of providing legal fees. The Kenyan Advocates Remuneration Order was last revised upwards in 2014, increasing professional fees by 50%. The Order was last revised in 1997. Advocates had petitioned the Chief Justice to do so in order to enable them cope with tough economic conditions. Recently there was a public discourse on whether advocates should have set fees. Stakeholders argue that the Chief Justice’s decision to adjust fees may not be entirely objective because since he or she has qualifications in law, and could revert to the profession upon retirement from office.
LSK on the other had contends that the minimum fees help protect consumers from poor services, and it reduces the price wars that would occur without the scale of fees. Under the Advocates Act, charging below the set scale of fees amounts to undercutting. This is a professional offense that could result in the concerned advocate being suspended or struck off the roll. Moreover, any agreements or instruments prepared by the concerned advocate are liable to be invalidated by the courts.
The question arose among legal stakeholders as to whether the Authority could intervene in relation to the scale of professional fees under the provisions on price-fixing. The LSK chairperson recently commented that it is beyond the jurisdiction of the Authority, as the Remuneration Order seeks to set minimum fees and not a fixed rate. However, it is clear from the provisions of Section 29 that any professional body whose rules, having regard to internationally applied standards, contain any restrictions which have the effect of preventing or substantially lessening competition in a market, must apply to the Competition Authority for an exemption of the said rules.
Price Setting Concerns by Association of Kenya Reinsurers, AKR
The Association of Kenya Reinsurers is regulated by the Kenya Reinsurance Corporation Limited Act, Cap 487A of the Laws of Kenya. The Association consists of the following companies: Kenya Reinsurance Corporation Limited, Africa Reinsurance Corporation Limited, East Africa Reinsurance Company, Zep – Re and Continental Reinsurance Limited. The Authority recently investigated this association for price fixing following a complaint lodged from the National Intelligence Service (NIS). The association, through a circular dated 2, October 2013, had advised its members on the minimum applicable premiums upon renewal of NIS Group Life Scheme for 2013/2014. Insurance companies are required by their regulator Insurance Regulatory Authority (IRA) to use an independent actuary to come up with their own individual premium rates, which they file with the IRA for approval.
The association is required under the Competition Act Section 29 (1) to apply in the prescribed manner to the Authority for an exemption in relation to any anti-competitive rules. Section 22 (2) (b) also prohibits the making, directly or indirectly, of a recommendation by a trade association to its members, or to any class of its members which relates to the prices charged, or to be charged by such members, or any such class of members, or to the margins included in the prices, or to the prices, or to the pricing formula used in the calculation of those prices. Therefore, the Association is legally bound to seek the approval of the Authority in order to set a minimum fee for any particular group of consumers. Moreover, the association may be in violation of Section 21 (f) of the Competition Act which prohibits any decisions by associations of undertakings which applies dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage, unless they are exempt in accordance with the provisions of Section D of Part III.
Conclusion
In conclusion, professional associations in Kenya should take advantage of the provisions of Section 29 of the Competition Act which allow professional associations to apply rules whose effect is the lessening of competition in the market, provided they are applied to enhance professional standards, the ordinary functioning of the profession or internationally applied norms for the benefit of consumers.
Key competition-law conference features dedicated panel discussion on African antitrust developments
By Michael-James Currie
The 54th annual American Bar Association Antitrust Spring Meeting was held in Washington, D.C., during the second week of April 2016 and the AAT editors were there to ensure that we provide our readers with an update on the latest developments in relation to African antitrust issues, discussed during a panel held last Friday.
ABA Africa Panelists
Given that mergers hit a global all-time high last year with the total value of transactions amounting to over USD 4.6 trillion, merger control is certainly at the forefront of many antitrust practitioners. The interest in mergers and acquisitions has perhaps gained even further attention in light of the announcement this week that the USD160 billion Pfizer/Allergan global mega-deal has been officially abandoned, despite the transaction having already been filed before all the relevant competition agencies around the world. While the Pfizer/Allergan deal was called off as a result of new tax laws and therefore not as a result of antitrust issues directly, the deal did put multinational mega-deals firmly in the spotlight.
The Pfizer/Allergan deal is not the only mega-deal that faced significant government opposition. It was announced this week that Halliburton’s takeover of Baker Hughes, in a deal valued at USD 25 billion, is going to be strongly opposed by the U.S. DOJ.
It is, however, not only the U.S. Government that is having a significant impact on multinational deals, as evidenced by the Anbang Insurance and Starwood Hotels & Resorts deal, valued at USD 14 billion, which has also been abandoned after mounting pressure by the Chinese government.
From an African perspective, the South African Competition Commission just last week extended its investigation in the USD 104 billion SABMiller and Anheuser-Busch InBev merger. It is widely suspected that the request for the extension is due to intervention by the Minister of Economic Development, in relation to public interest grounds. Although there is no suggestion at this stage that Minister Patel is opposing the deal, the proposed intervention does highlight bring into sharp focus the fact that multinational mega-deals face a number of hurdles in getting the deal done.
‘Getting multinational deals through’ is a hot topic at the moment amongst antitrust practitioners and is and the ABA thought it beneficial to have a panel discussion dedicated purely to merger control issues across African jurisdictions. In particular, the panel addressed some of the key issues which merging parties need to consider, including inter alia issues relating to harmonisation across agencies, the role of public interest considerations, prior implementation and the need for upfront substantive economic assessments.
The panel consisted of a varied mix of panellists from both private practice and government, and included Pr1merio director John Oxenham (he is also a founding partner at South African based law firm Nortons Inc.), economist and former Commissioner of the COMESA Competition Commission (COMESA CC) Rajeev Hasnah (Rajeev was also a former commissioner of the Mauritius Competition Commission and is an economist for Pr1merio), manager of the South African Competition Commission office, Wendy Ndlovu, and Kenyan based external counsel Anne Kiunuhe (Anne practices at the law firm Anjarwalla & Khanna).
The panellists were tasked with addressing a variety of topics: we summarise below some of the key issues which the panellists highlighted, which merging parties, practitioners and antitrust agencies themselves (amongst whom Tembikosi Bonakele, the South African Competition Commissioner was present in the panel audience) should be cognisant of in relation to merger control in Africa.
John Oxenham and Wendy Ndlovu at ABA Spring Meeting 2016 in Washington, D.C.
John Oxenham
John pointed out that from a South African perspective, mergers undergo a robust evaluation by the Competition Authorities and that although the investigation of most large mergers is completed within 60-70 days, the fact that the Commission may request the Competition Tribunal for an extension of up to 15 business days at a time, may result in the investigation of certain mergers taking considerably longer. The risk of a merger being delayed is increased significantly due to the level of third party interventionism, particularly ministerial intervention on public interest grounds.
John advised that merging parties should consider the impact that a particular merger will have on the public-interest grounds upfront to avoid delays in the investigation period as a result of further requests for information from the Commission, or may even amount to an incomplete filing.
In respect of substantive economic assessments, John pointed out that a number of jurisdictions, including South Africa, Namibia, Zambia and to a lesser extent Botswana, requires a substantive upfront economic assessment. In this regard the South African Competition Commission is perhaps the most robust in its economic evaluation of a merger in light of the resources dedicated to its own in-house economic department as well as utilising external experts when necessary. John also highlighted the fact that the South African Competition Authorities rely on oral testimony and expert witnesses are often subjected to substantial and lengthy examination and cross examination before the Competition Tribunal.
On the topic of gun-jumping or prior implementation, John mentioned that the following jurisdictions are examples of countries which do not require notification prior to implementing the transaction – in other words, they are not suspensory:
Malawi
Senegal
Mauritius
Whereas the following countries do require notification prior to implementation (suspensory merger control jurisdictions):
South Africa
Swaziland
Zambia
Botswana
On harmonisation, John confirmed that in relation to public interest considerations in merger control, the South African competition authorities play a leading role on the African continent and pointed out that in addition to Kenya and Tanzania, Namibia also considers public interest considerations and that there is a substantial amount of collaboration and information sharing between the South African and Namibian competition authorities, as was the case in the Walmart/Massmart deal.
Despite the information sharing between agencies, John confirmed that there are rules in place to protect confidential and legally privileged information and that the South African competition authorities are cognisant and respectful of these provisions.
Rajeev Hasnah
Rajeev Hasnah, Pr1merio economist and former COMESA Competition Commissioner, and Anne Kiunuhe from Kenya
Rajeev noted the significant progress which the COMESA CC has made in relation to merger control by publishing financial thresholds for mandatorily notifiable transactions and specified filing fees, as well as publishing guidelines which clarify when a merger will have a sufficient regional dimension to fall within the COMESA CC’s jurisdiction.
On the topic of harmonisation, Rajeev discussed the challenges due to a lack of harmonisation between COMESA and its member states and noted that COMESA does not have exclusive jurisdiction in the cases which do fall within its jurisdiction. Parties, therefore, may find themselves being required to file a merger both before the COMESA CC as well as before the respective national authorities. A further challenge facing the COMESA CC is that there are 19 member states and consequently, the relevant geographic market is significant. Accordingly, often the national authorities are best placed to evaluate a merger and will therefore defer the evaluation of the merger to the relevant national authority.
On the role of economic assessments, Rajeev stated that an economic assessment underlies any merger evaluation and that both the Mauritius Competition Commission and the COMESA Competition Commission conducts a comprehensive economic assessment of a merger.
Wendy Ndlovu
When asked on what role public interest considerations play in merger control in terms of the South African competition regime, Wendy indicated that the framework of the Competition Act specifically requires the competition authorities to consider the impact that a merger may have on the four specified public interest provisions contained in the Act. Wendy confirmed that an evaluation of public interest considerations may both justify a merger despite the merger likely being likely to cause a substantial lessening or prevention of competition in the market, alternatively, public interest considerations may lead to a prohibition or the imposition of conditions on a merger which raises no competition law concerns and may in fact be pro-competitive.
Wendy recognised that there is a need, however, for greater certainty in respect to the manner in which the South African authorities evaluate public interest considerations and pointed out that the Competition Commission is likely to finalise and publish its guidelines on the public interest assessment in an effort to promote greater certainty.
On prior the issue of prior implementation, Wendy pointed out that merging parties need to be mindful of the consequences of gun-jumping and noted that the South African Competition Tribunal has imposed administrative penalties, as in the Netcare case, on parties for failing to notify a mandatorily notifiable transaction.
Anne Kiunuhe
Anne discussed the Competition Authority of Kenya’s (CAK) willingness to focus not only on merger control but has also identified the CAK’s increasing tendency to investigate and prosecute firms engaged in restrictive practices (as demonstrated by the recent dawn raids conducted by the CAK in the fertiliser industry). Despite the CAK’s growing confidence, Anne pointed out that in respect of merger control, the CAK is open to and in fact often relies on precedent from foreign jurisdictions when evaluating a merger. In particular, Anne noted that public interest grounds are specifically considered during the merger review procedure and that in this respect, the CAK largely takes the lead from the South African competition authorities.
From a practical perspective, Anne mentioned that the CAK usually requests a meeting with the merging parties soon after a transaction has been notified, and that usually representatives from the merging parties, along with local external legal counsel, should be present. The CAK prefers that the representatives present should be the best placed to answer or address the CAK’s queries. This often necessitates representatives from the parent company being present as opposed to representatives from the subsidiary entities only.
The direct contact between the CAK and the merging parties is quite different from the manner in which the COMESA CC evaluates mergers where the consideration of a merger is done solely on the papers and any communication between the COMESA CC and the merging parties is done through the merging parties’ local external counsel.
As to legislative developments, Anne pointed out that the merger regulations in Kenya now provide that for purposes of establishing a “change of control”, it is sufficient if the acquiring firm is able to materially influence the commercial decisions of the target firm. Accordingly, the acquisition of a minority shareholding for instance may constitute a change of control if the holders of such shares may for instance exercise veto rights.
On COMESA, Anne mentioned that the COMESA CC permits merging parties to seek a comfort letter when unsure as to whether a merger requires filing and that the use of comfort letters has been rather prevalent.
Conclusion
The role of public interest considerations in merger control was a dominant focus point throughout the panel discussion due to this unique aspect in a growing number of African jurisdictions merger control provisions.
Please click on the following link to access a an article on the role of public interest considerations in merger control in South Africa, which addresses in particular, the impact of ministerial intervention in merger proceedings and the concomitant impact which such intervention has on the costs, timing and certainty of merger proceedings.
March 2016 has been a busy month for the competition agencies of South Africa and Kenya respectively. Both agencies carried out search and seizure operations as a result of alleged collusion within various sectors of the economy. While the March dawn raids are not connected, the South African Competition Authority, as part of its advocacy outreach, provided training to the Competition Authority of Kenya relating to inter alia, search and seizure operations.
South Africa
On 23 March 2016, the South African Competition Commission carried out search and seizure operations in the automotive glass fitment industry, as part of its continued investigation into alleged collusion within this sector.
Accordingy to the SACC, the raid was carried out “at the Gauteng premises of PG Glass, Glasfit, Shatterprufe and Digicall as part of its investigation of alleged collusion. PG Glass and Glasfit are automotive glass fitment and repair service providers; Shatterprufe supplies PG Glass and Glasfit with automotive glass while Digicall processes and administers automotive glass related insurance claims on behalf of PG Glass and Glasfit.”
John Oxenham, founding director of Pr1merio, notes that “[t]his most recent dawn raid follows on from those carried out towards the latter part of 2014 and 2015 and confirms that the SACC has adopted a more robust approach to investigating alleged anti-competitive practices.” In this regard, Commissioner, Tembinkosi Bonakele, confirmed at the 9th Annual Competition, Law, Economics and Policy Conference in November last year that the Competition Commission has in the past two years, “conducted more dawn raids than those conducted in preceding years since the Competition Commission came into existence” (nearly 16 years ago).
For an overview of dawn raids and cartel investigations in South Africa, please see the following GCR Article.
Kenya
This month the Competition Authority of Kenya (“CAK”) conducted its first dawn raid. The search and seizure operations were carried out in respect of two fertiliser firms, Mea Limited and the Yara East Africa, based on the CAK’s suspicion of price fixing occurring between these two firms, who together control approximately 60% of the fertiliser market. The CAK conducted the raid in accordance with Section 32 of the Competition Act, 2011 which provides for the Authority to enter any premises in which persons are believed to be in possession of relevant information and documents and inspect the premises and any goods, documents and records situated thereon. This follows an inquiry which was launched last year by Kenyan competition authorities into what the CAK termed “powerful trade associations exhibiting cartel-like behaviour specifically targeting banks, microfinance institutions, forex bureaus, capital markets as well as the agricultural and insurance lobbies”. The fact that the CAK has carried out its first dawn raid demonstrates its growing stature.
The fertiliser industry appears to be a priority sector for a number of African jurisdictions as the CAK’s investigation into this sector follows the South African Competition Commission’s investigation into the fertiliser industry (which resulted in a referral before to the South African Competition Tribunal for adjudication some years back). In this regard,the South African Competition Commission’s spokesperson stated that the “fertiliser sector is viewed as a priority sector, due to the its importance as an input in the agricultural sector” (as reported here on African antitrust)
Zambia
Interestingly, the Zambian Competition and Consumer Protection Commission (“CCPC”) had, in 2012, conducted dawn raids at the premises of two fertiliser companies, as a result of alleged collusion within the industry.
On a Path to Harmonisation?
While there are a number of practical and legislative hurdles to effectively carrying out cross border search and seizure operations, it appears that cross border investigations may not be too far off. This is particularly so as the various agencies within the Southern African Region have identified similar priority sectors (as evidenced by both the investigations into the fertiliser sectors as well as the various market inquiries into the grocery retail sector).
Landlocked and Oil-Rich South Sudan Joins Free-Trade Zone
As South Sudan was officially admitted to the East African Community (EAC) as its sixth member in Arusha (Tanzania), on Wednesday, March 2, the beleaguered nation joined a free-trade zone that will allow it to benefit from more open labour movement, less restrictions on capital flows and other increased economic integration. The other member states are Tanzania, Kenya, Uganda, Burundi, and Rwanda. After integration with S. Sudan — the youngest nation on Earth — the region will have a population of an estimated 163 million.
John Oxenham, of Pr1merio Africa advisors, says: “South Sudan’s former institutional weaknesses were (apparently, despite the ongoing civil strife in the country) sufficiently remedied that the EAC governing body saw fit to grant the application for admission that had been pending since 2011. Basic governance principles must be met for EAC membership, and we are not even talking competition-law here…”
As the EAC charter provides, all members must demonstrate and strive to achieve “good governance including adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender equality, as well as the recognition, promotion and protection of human and peoples’ rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights.” (EAC Treaty, Chapter 2 Article 6 (d)).
Setting aside civil-rights concerns or worries about political instability, the integration of an oil-rich nation may ultimately benefit its neighbouring fellow EAC members, such as Kenya and Uganda. It remains to be seen whether integrating a less-than-stable country into the EAC zone will harm the competition legislation the region enacted in 2006. As AAT author Elizabeth Sisendapointed out recently, the organisation “has been setting up the mechanisms for its enforcement to-date through capacity building and mobilizing resources. In 2010, the EAC subsequently enacted competition regulations to assist in implementing the Act. One of the main challenges that has been encountered in the EAC with regards to the implementation of competition law and policy has been the unique economic and market structure of the member states. The majority of the EAC member states are economies that are transitioning from state-regulation to liberalization.”
We note that S. Sudan’s northern neighbour, the Republic of [the] Sudan, is currently a COMESA member state and thereby subject to the COMESA competition-law regulations and related merger-notification regime. South Sudan has, since at least the 2012 talks in Uganda, likewise been in negotiations with the COMESA governing bodies to discuss accession to that free-trade zone.
Uber Africa: Increased competitiveness not a boon for entrenched monopolies
Continuing our AAT multi-part series on innovation & antitrust we turn once again to the ubiquitous “Sharing Economy” we are witnessing not only in the United States and Europe but also on the African continent…
“The taxi industry is in the midst of a crisis. Once protected by a regulated monopoly of the commercial passenger motor vehicle transportation market, the industry now faces increasing competition from a new type of transportation service—ride-sharing. The emergence of companies like Uber, the most successful ride-sharing company, threatens to eliminate the taxi industry’s stronghold on the ground transportation market and possibly the industry itself.” (Erica Taschler, Institute for Consumer Antitrust Studies, in “A Crumbling Monopoly: The Rise of Uber and the Taxi Industry’s Struggle to Survive“)
Today, the Taxi Cab Association of Kenya announced protests against the “unfair competition” its members face from ride-sharing giant Uber, according to the organisation’s chairman, Josphat Olila. This is no news for folks in London, Brussels, Hamburg, or Washington — places where the taxi-medallion-capped brethren of Nairobi’s cabbies have all long ago gone through the protest phase against the rising tide of the “new economy’s” novel way of hailing cars. Examples abound, and all involve more or less refined antitrust arguments.
Andreas Stargard, an attorney with Africa competition advisors Primerio, sums it up as follows: “The pro-competitive notion of innovation-plus-price competition is perhaps best understood by looking at the views of two leading antitrust agencies, the FTC and the European Commission. Both have articulated simple and sound arguments for striking the right balance between regulatory limits for the protection of passengers, as well as allowing innovative technologies to enhance the competitive landscape and thereby increasing transportation options for riders. In antitrust law, more options usually equal better outcomes.”
U.S.
Here is what the U.S. Federal Trade Commission had to say in 2013 about the D.C. taxi commission’s ‘unfair competition’ argument against ride-sharing services:
“The staff comments recommend that DCTC avoid unwarranted regulatory restrictions on competition, and that any regulations should be no broader than necessary to address legitimate public safety and consumer protection concerns. … [T]he comments recommend that DCTC allow for flexibility and experimentation and avoid unnecessarily limiting how consumers can obtain taxis.”
Crucially, the Kenyan cabbies’ argument that Uber should be banned is based on price competition from Uber’s lower fares. One of the main tenets of competition law is: lower prices are good for consumers (in general), as long as service quality remains the same. With Uber in the mix, quality arguably increases beyond the sad status quo of smelly and difficult-to-hail cabs: for one, users now are able to know when and where their car arrives, quality control via Uber’s policies and check-ups is available, convenient electronic billing & dispute resolution exists, etc.
Let’s go back to the FTC’s public comments and see their take:
“Competition and consumer protection naturally complement and mutually reinforce each other, to the benefit of consumers. Consumers benefit from market competition, which creates incentives for producers to be innovative and responsive to consumer preferences with respect to price, quality, and other product and service characteristics. As the U.S. Supreme Court has recognized, the benefits of competition go beyond lower prices: ‘The assumption that competition is the best method of allocating resources in a free market recognizes that all elements of a bargain – quality, service, safety, and durability – and not just the immediate cost, are favorably affected by the free opportunity to select among alternative offers’.”
EU DG COMP
Former Competition Commissioner Neelie Kroes would agree wholeheartedly with the above, and indeed said in 2014 that she was “outraged at the decision by a Brussels court to ban Uber.” In her personal op-ed piece, published on the EU Commission’s web site under the catchy title “Crazy court decision to ban Uber in Brussels“, she poignantly had this to tell the Belgian Mobility Minister who signed off on the Uber ban:
“This decision is not about protecting or helping passengers – it’s about protecting a taxi cartel. The relevant Brussels Regional Minister is Brigitte Grouwels. Her title is “Mobility Minister”. Maybe it should be “anti-Mobility Minister”. She is even proud of the fact that she is stopping this innovation. It isn’t protecting jobs Madame, it is just annoying people!”
We wonder what would happen if Neelie Kroes were Kenyan government minister…
Kenya: Keep prices high and ‘foreign’ competition out?
The Kenyan Taxi Association does not see it that way, just like its D.C. counterpart did not some 3 years ago. However, D.C.’s streets are still full of old-fashioned cabs, and Uber — while popular — is still far from blowing out the light shone by the once-prized cabbie medallions…
Still, the Kenyan association claims that between 4,000 and up to 15,000 taxi drivers face job extinction due to lower prices charged by Uber, which has been active in Nairobi since the beginning of 2015. Again, the “lower price” argument is a red herring under even the most basic application of competition economics, which shows that innovation-based price competition is ultimately pro-competitive and good not only for the end consumer but also the industry’s development as a whole.
The Kenyan taxi-cab organisation not only claims that the livelihoods of its members are at stake, but also “questioned the protocols followed by the foreign investors behind Uber, saying they were not consulted before the service provider entered the market,” according to an article in the Kenyan Daily Nation. The association’s spokesman is quoted as saying: “We have loans to service, families to feed, children to educate and other responsibilities to cater for and we are not ready to leave the transport industry to a foreigner and render [ourselves] jobless while we are in a democratic republic.”
So in the end, the ‘unfair taxi competition’ argument devolves into xenophobia and mistrust. Sadder yet, Kenya’s Uber fight has now taken a violent turn: Yesterday, an Interior Ministry spokesman said that there had been reports of attacks on Uber drivers, which are being investigated.
AAT of course deplores the resort to violence and trusts that neither it nor the upcoming protests will impede the progress of competitiveness in Kenya, a country that otherwise prides itself on encouraging competition (see CNBC Africa video on “East African competitiveness”). The sole glimmer of hope we see consists of the closing line of the Daily Nation piece, which notes that “[t]he drivers have also promised to come up with their own version of Uber to connect taxi drivers in the country.” That is what innovation is all about: Uber innovates, others copy (be it Lyft or the Kenyan cabbies), and everyone is better off in the final analysis.
Emerging markets or developing economies only recently adopted competition law and policy as an exclusive legal and economic tool for regulating markets. In previous years, restrictive trade practices were mostly handled under government price control departments or monopolies commissions. Most of the competition legislation and regulations in developing economies were promulgated within the last decade.
The EAC, in particular, enacted its competition legislation in 2006 and has been setting up the mechanisms for its enforcement to-date through capacity building and mobilizing resources. In 2010, the EAC subsequently enacted competition regulations to assist in implementing the Act. One of the main challenges that has been encountered in the EAC with regards to the implementation of competition law and policy has been the unique economic and market structure of the member states.
The majority of the EAC member states are economies that are transitioning from state-regulation to liberalization. Consequently, several key sectors of these economies are still under quasi-governmental regulation by independent agencies established by the legislature, or explicitly protected by executive policy or subsidiary legislation.
As a result of the progressive liberalization of EAC economies, private entities have been building capacity to supply sectors of the economy where the government once had a monopolistic stake. These private firms, both local and multinational, have faced several challenges in meeting market requirements in terms of capacity. Consequently, the governments of these economies have sometimes adopted a protectionist approach for key sectors of their economies in the public interest. As much as this has often contributed to the substantial lessening of competition in the affected sectors to the detriment of consumers, these regulatory measures have been upheld by the respective governments on the grounds of national interest. The EAC, however, has been very cautious in its provisions for exemptions within the common market that could contribute to the substantial lessening of competition.
The EAC exemptions
Section 6 (3) of the EAC Competition Act provides that the Competition Authority may exempt a category of concerted practices by firms or parties, provided the concerted practice is limited to objectives which lead to an improvement of production or distribution, and whose beneficial effects, in the opinion of the Authority, outweigh its negative effects on competition. However, any exemptions granted by the Authority under this sub-section shall be applicable only if the combined market share of the parties involved in the concerted practice does not exceed 20% of the relevant market, and the agreement relating to the concerted practice does not contain any restrictive trade practice expressly prohibited under the Act. Thus, it may be contended that this exemption does not contribute to the substantial lessening of competition because it only applies to small or medium firms without any hint of market power, having a maximum market share of 10% each. Furthermore, the net effect of the concerted practice is beneficial to consumer welfare by improving access to goods or services. It also gives leeway for small producers to produce more efficiently, thus improving market conditions.
Low shares = more permissible conduct
The Authority under section 6 (1) further allows competitors whose combined market share does not exceed 10% of the relevant market to apply quantitative restraints on investment or input, output or sales, and engage in concerted practices that restrict the movement of goods within the common market. However, such conduct is expressly forbidden by the Act in the case of firms with larger market share. It may be contended that this particular provision is aimed at enabling small and medium enterprises to have a strategic opportunity to operate in an otherwise large and well-exploited market. It also does not limit competition because the firms in question have very little market share. Instead this exemption aims at protecting the competitiveness of the market by ensuring that smaller firms are not driven out of the market by larger, more efficient firms.
R&D and so on
Under section 6 (2) of the Act, the Authority also exempts 3 categories of conduct, namely: joint research and development, specialization of production or distribution and standardization of products or services, by firms whose combined market share does not exceed 20% of the relevant market. This exemption requires that the agreement relating to these categories of concerted practices should not contain any of the expressly prohibited anti-competitive practices under the Act. The Authority may contend that this exemption promotes consumer welfare by enabling smaller firms to collaborate in improving the quality of products or services in the relevant market through standardization and specialization efforts. It also enables smaller firms to participate in innovation through a collaborative effort. Most firms with this extent of combined market share would lack the resources or capacity on their own to engage in these activities that promote consumer welfare and efficiency in the relevant market.
Get permission first!
According to section 7 of the Act, any firm or person must first apply to the Authority, in accordance with the Regulations, for clearance to engage in any concerted practice. The Authority shall thereafter communicate its decision to the applicant within 45 days of receipt of the application. However, if the Authority does not communicate its decision in the specified duration, then the permission for the concerted practice shall be deemed to have been granted. Under the same section, it is an offence, punishable by a fine of not more than $10 000, to omit to seek the permission of the Authority to engage in a concerted practice. The Regulations under section 16 further provide that the undertaking seeking an exemption must pay the prescribed fees, and provide a detailed statement setting out the reasons why the concerted practice should be permitted for consideration to the Authority.
Conclusion
The EAC exemptions are therefore permitted in the common market to exercise a form of economic regulation for the purpose of ensuring that small and medium enterprises can effectively compete in a liberalized market without being driven out by firms with larger market share. In this way, the public interest is promoted to ensure that national or regional interests such as employment, allocative efficiency, specialization agreements and international competitiveness of domestic firms are taken into account. Applying exemptions does not necessarily imply the weakening of competition law enforcement. National economic policy considerations such as the maintenance and promotion of exports, changing productive capacity to stop decline in a particular industry, or maintaining stability in a particular industry are some of the policy considerations that motivate the application of exemptions. However, exemptions must be applied with caution because their application in one sector can perpetuate or induce distortions that can affect economic efficiency.
East-Africa & Antitrust: Enforcement of EAC Competition Act
By AAT guest author, Anne Brigot-Laperrousaz.
Introduction: Back in 2006…
The East African Community (the “EAC”) Competition Act of 2006 (the “Act”) was published in the EAC Gazette in September 2007. The Act was taken as a regulatory response to the intensification of competition resulting from the Customs Union entered into in 2005. This was the first of the four-step approach towards strengthening relations between member States, as stated in Article 5(1) of the Treaty Establishing the EAC.
Challenges facing the EAC
As John Oxenham, an Africa practitioner with advisory firm Pr1merio, notes, “10 years have passed since the adoption of the EAC Act, yet it remains unclear when (and if) the EAC will develop a fully functional competition law regime.”
The EAC Competition Authority (the “Authority”) was intended to be set up by July 2015, after confirmation of the member States’ nominees for the posts of commissioners. Unfortunately Rwanda, Uganda and Burundi failed to submit names of nominees for the positions available, and the process has become somewhat idle, leaving questions open as to future developments.
The main challenges facing the EAC identified by the EAC’s Secretariat is firstly, the implementation of national competition regulatory frameworks in all member States; and secondly, the enhancement of public awareness and political will[1].
The first undertaking was the adoption of competition laws and the establishment of competition institutions at a national level, by all member states, on which the sound functioning of the EAC competition structure largely relies.
Apart from Uganda, all EAC member States have enacted a competition act, although with important discrepancies as to their level of implementation at a national level.
The second aspect of the EAC competition project is the setting up of the regional Competition Authority, which was to be ensured and funded by all members of the EAC, under the supervision of the EAC Secretariat. Although an interim structure has been approved by member States, the final measures appear to be at a deadlock.
As mentioned, the nomination of the commissioners and finalisation of the setting up of the EAC Competition Authority came to a dead-end in July 2015, despite the $701,530 was set aside in the financial budget to ensure the viability of the institution[2]. It is widely considered, however, that this amount is still insufficient to ensure the functionality of the Competition Authority. Andreas Stargard, also with Pr1merio, points out that “[t]he EAC has been said to be drafting amendments to its thus-far essentially dormant Competition Act to address antitrust concerns in the region. However, this has not come to fruition and work on developing the EAC’s competition authority into a stable body has been surpassed by its de facto competitor, the COMESA Competition Commission.”
Furthermore, inconsistencies among national competition regimes within the EAC are an important impediment to the installation of a harmonised regional enforcement. Finally, international reviews as well as national doctrine and practice commentaries have highlighted the lack public sensitization and political will to conduct this project.
A further consideration, as pointed out by Wang’ombe Kariuki, Director-General of the Competition Authority of Kenya, is the challenge posed by the existence of the Common Market for Eastern and Southern Africa (“COMESA”).
Conclusion
The implementation of the EAC has not seen much progress since its enactment, despite its important potential and necessity[3]. It therefore remains to be seen how the EAC deals with the various challenges and whether it will ever become a fully functional competition agency.
A quick summation of the status of the national laws of the various EAC members can be seen below. For further and more comprehensive assessments of the various member states competition law regimes please see African Antitrust for more articles dealing with the latest developments.
The Tanzanian Fair Competition Act (the “FCA”) was enacted in 2003, along with the institution of a Commission and Tribunal responsible for its enforcement. The FCA became operational in 2005. Tanzania’s competition regime was analysed within the ambit of an UNCTAD voluntary peer review in 2012[4]. The UNCTAD concluded that Tanzania had overall “put in place a sound legal and institutional framework”, containing “some of the international best practices and standards”.
This report, however, triggered discussions on major potential changes to the FCA, which would impact, in particular, institutional weaknesses and agency effectiveness[5]. One of the most radical changes announced consisted in the introduction of criminal sanctions against shareholders, directors and officers of a firm engaged in cartel conduct[6], although there is no sign that this reform will be adopted.
Kenya, following a 2002 OECD report[7] and the European Union competition regulation model, replaced its former legislation with the 2010 Competition Act, which came into force in 2011, and established a Competition Authority and Tribunal. Under the UNCTAD framework, the 2015 assessment of the implementation of the recommendations made during a voluntary peer review conveyed in 2005[8] was generally positive. It was noted, however, that there was an important lack of co-operation between the Competition Authority and sectoral regulators, and that there was a need for clear merger control thresholds[9].
Burundi adopted a Competition Act in 2010, which established the Competition Commission as the independent competition regulator. To date, the Act has not yet been implemented, and accordingly no competition agency is in operation[10].
A 2014 study led by the Burundian Consumers Association (Association Burundaise des Consommateurs, “Abuco”) (which was confirmed by the Ministry of Trade representative) pointed to the lack of an operating budget as one of the main obstacles to the pursuit of the project[11].
Rwanda enacted its Competition and Consumer Protection Law in 2012, and established the Competition and Consumer Protection Regulatory Body.
As for Uganda, to date no specific legal regime has been put in place in Uganda as regards competition matters, although projects have been submitted to Uganda’s cabinet and Parliament, in particular a Competition Bill issued by the Uganda Law Reform Commission, so far unsuccessfully.
Footnotes:
[1] A Mutabingwa “Should EAC regulate competition?” (2010), East African Community Secretariat
[2] C Ligami, “EAC to set up authority to push for free, fair trade” (2015), The EastAfrican
[3] O Kiishweko, “Tanzania : Dar Praised for Fair Business Environment” (2015), Tanzania Daily News
[4] UNCTAD “ Voluntary Peer Review on competition policy: United Republic of Tanzania” (2012), UNCTAD/DITC/CLP/2012/1
[5] S Ndikimi, “The future of fair competition in Tanzania” (2013), East African Law Chambers
[6] O Kiishweko, “Tanzania: Fair Competition Act for Review’ (2012), Tanzania Daily News.
[7] OECD Global Forum on Competition, Contribution from Kenya, “ Kenya’s experience of and needs for capacity building/technical assistance in competition law an policy “ (2002), Paper n°CCNM/GF/COMP/WD(2002)7
[9] MM de Fays, “ UNCTAD peer review mechanism for competition law : 10 years of existence – A comparative analysis of the implementation of the Peer Review’s recommendations across several assessed countries” (2015)
Competition law as a tool for promoting consumer welfare & maintaining a competitive market in Kenya
By contributing author Elizabeth Sisenda, LL.M (London) LL.B (CUEA) PGD Law (KSL)
The core aim of enforcing competition law revolves around balancing between beneficial market power and market power that is detrimental to consumer welfare. Market power can be defined as the ability of a firm to raise and maintain price above the level that would prevail under competitive market conditions, without being destabilised by consumers switching to other products/services or new competitors entering the same market. Often the actual price is above cost leading to high profits for the firm with market power. In practice, the pursuit of market dominance can be a great incentive for investment, cost efficiency and innovation. Therefore, the acquisition of a dominant position through superior product or customer services, better pricing, innovation, efficiency and investment is not illegal. Only the abuse of dominance is prohibited. Where a firm exercises market power, competition law functions to protect the openness of the market by ensuring that the dominant firm does not impose unfair trading conditions for actual or potential competitors, or abuse its intellectual property rights. It also intervenes to prevent direct harm to consumer welfare through conduct or transactions that limit output or production artificially in order to price-fix.
Merger control is another important function of competition law and policy, that is designed to prevent positions of market power from being established through acquisition, unless there is a strong economic efficiency rationale that will mitigate for the loss of competition between the merging firms. A company should therefore earn market power and not simply buy out competitors.
Thus, an important ideal of competition policy is to promote a contestable market for as long as it promotes consumer welfare, and a feasible market structure for a particular sector of the economy. In a contestable market, the sunken costs required to join the sector are negligible and other entry barriers are so low that the threat of new entrants is sufficient to check the conduct of the incumbent firm with market power. The costs of exiting the market are also negligible.
In relation to competitors, competition law cannot intervene on behalf of a particular firm in the market, without taking into account the broader effects of the conduct in question on competition in the relevant market. A firm would have to show, on the face of it, that its competitors in that market are engaged in concerted or collusive practices. For instance, competitors can tacitly seek to exercise market power through anti-competitive agreements that enable them to concentrate the market. This often results in one or more firms becoming large enough to be in a position to affect the market’s outcomes in a manner that causes consumer welfare or public interest to be compromised.
Under these circumstances, competition law intervenes and investigates to ensure that there is no unwarranted concentration of economic power in a particular market through collusive agreements between competitors. Unwarranted concentrations of economic power exist where there is cross-directorship or sharing of a senior employee or executive between two distinct firms providing substantially similar goods or services, and whose combined market share is more than 40%. Competition legislation regulates this conduct because it often results in board decisions being made that could lead to collusion among the firms involved, such as price fixing and dividing markets, thereby lessening competition.
For instance, in Kenya, the cement sector has been under investigation for unwarranted concentrations of economic power. Although there are a number of cement-producing companies in the market, the dominant multinational firm – Lafarge Limited, has a 58.6% stake in the leading producer, Bamburi Cement Limited and a 42% shareholding in another leading company, East African Portland Cement Limited. Market concentration concerns have arisen because Bamburi Cement Limited, which has a market share of 39%, has had cross-directorship with the 3rd largest producer in the market – East African Portland Cement Limited to an extent that may dampen competition. Kenya’s cement prices have been the second highest out of six eastern and southern African countries including South Africa, Zambia and Tanzania between 2000-2014 according to a sector report. In 2014, the Kenyan government recommended that Lafarge dilute its shareholding in East African Portland Cement Limited. However, it was not conclusive whether price fixing was going on.
On the other hand, Kenya’s cement sector may experience increased competition from imports as a result of the East African Community (EAC) reducing the common external tariff (CET) on cement from 35% to 25% through an EAC gazette notice of February 2015. Cement has also been removed from the list of sensitive products that require protection until domestic industries can compete according to the same gazette notice. Although local cement producers are protesting the move, consumers stand to gain, as the liberalized market will lead to lower prices of the commodity, and possibly have a positive impact on the construction industry.
Notes Andreas Stargard, a competition practitioner with Primerio Ltd., “[i]n this case — which really represents a classic minimum-price fixing arrangement among trade association members — the billboard owners agreed during a period of less than one year to set a minimum monthly price of Sh160,000 in large Kenyan markets, such as Nairobi. Interestingly, they price-discriminated geographically within their cartel arrangement and fixed the corresponding fees in smaller markets at a slightly lower amount.”
Professional fees for advocates in Kenya are set by the Chief Justice under the Advocates Act Chapter 16 of the Laws of Kenya. Part IX Section 44 provides that the Chief Justice may by order prescribe and regulate in such manner as he/she thinks fit the remuneration of advocates in respect of all professional business, whether contentious or non-contentious. Sub-section (2) also provides that the Chief Justice may prescribe a scale of rates of commission or percentage in respect of non-contentious business.
John Oxenham, of 
overnments of these economies have sometimes adopted a protectionist approach for key sectors of their economies in the public interest. As much as this has often contributed to the substantial lessening of competition in the affected sectors to the detriment of consumers, these regulatory measures have been upheld by the respective governments on the grounds of national interest. The EAC, however, has been very cautious in its provisions for exemptions within the common market that could contribute to the substantial lessening of competition.
African Antitrust & Competition Law 