Beyond the DOJ: Criminal liability for cartel conduct in Africa

South Africa: Driving Force behind Enforcement of Criminal Sanctions for Cartelists?

By AAT Senior Contributor, Michael-James Currie

In May 2016, precisely a year ago, criminal liability for directors or persons with management authority who cause a firm to engage in cartel conduct was introduced in South Africa by way of amendments to the Competition Act.

The introduction of criminal liability caught most of the South African competition law community off-guard, including the competition authorities, despite the relevant legislative provisions having been drafted and presented to Parliament for approval in 2009.

A major reason why there was such a delay in the enactment of the relevant legislation were concerns raised about the practicality and legality in enforcing the criminal liability provisions, at least in the manner currently drafted. These concerns, however, were never addressed and the Minister of Economic Development, Minister Patel, proceeded to bring into effect the criminalising provisions. The Minister has openly taken a view that current administrative penalties, which to date have been the most prominent form of sanctions imposed on firms for engaging in cartel conduct, do not provide a sufficient deterrent.

Criminal sanctions are, however, by nature a rather retributive liability, and there have been limited instances in which firms that have previously found to have contravened the Competition Act are repeat offenders. Administrative penalties coupled with reputational damage would appear to be a substantial deterrent.

Regardless, the sentiments of Minister Patel were recently echoed by the head of the National Prosecuting Authority, Shaun Abrahams, who recently indicated that anti-corruption task team (ACTT) has been briefed to treat ‘collusion’ in the same vein as corruption. The ACTT was formulated in 2010 to target high profile cases of corruption.

While it is understood that the Competition Commission (SACC) and the National Prosecuting Authority (NPA) having been working on a memorandum of understanding between the two enforcement agencies for over a year, it appears that such a MoU is still some way off from being finalised.

It is not yet clear whether the NPA envisages a more active role in cartel investigations with a view to institute criminal proceedings in terms of the Competition Act, or whether Mr Abrahams envisages holding those accountable by other pieces of anti-corruption legislation such as the Prevention and Combatting of Corrupt Activities Act (PACCA).

Mr Abrahams has indicated that he has been trying to set up a meeting with the Commissioner of the South Africa Competition Commission, Tembinkosi Bonakele, in order to discuss recent investigations by the SACC, most notably in the banking sector.

Of particular interest is that the Black Empowerment Forum (BEF) had laid criminal charges at the South African Police against Citibank following Citibank’s R69 million settlement agreement with the SACC. The BEF had indicated that they would write to the President and the NPA in an effort to elevate and expedite this case.

The recent banking referrals have been politically charged with many of the view that there has been political interference in the manner in which the banking investigation has been handled. A number of reports have linked the BEF which was allegedly only established in April 2017, to the President’s son, Edward Zuma.

This does raise queries as to the motivation behind the BEF’s criminal complaint and also whether it was the BEF’s criminal complaint that has sparked Mr Abrahams’ recent comments.

The timing of the BEF criminal complaint and Mr Abrahams’ expressed interest in pursuing cartelists for criminal liability, the allegations of political interference in the banking referrals and the lack of any formal arrangement between the SACC and the NPA regarding the enforcement of the criminal sanctions (as far as we are aware) may all be unrelated issues. This, however, seems doubtful.

Namibia Competition Commission: New Franchise Laws to Address Anti-Competitive Concerns

By AAT Senior Contributor, Michael-James Currie

The CEO of the Namibian Competition Commission (NCC), Mr. Mihe Gaomab II, recently announced that the NCC has made submissions to the Minister of Trade and Industry in relation to proposed legislation which will regulate franchise models in Namibia.

Currently, there is no specific ‘franchise law’ in Namibia and moreover, franchisees are not required to apply to the Minister of Trade and Industry for registration of an ‘approval’ licences. Accordingly, there is minimal regulatory oversight in respect of franchise models.

While recognising the benefits of franchise models, the NCC is, however, concerned that there are a number of franchises in Namibia which may be anti-competitive in that the franchisor-franchisee relationship creates certain barriers to entry.

The NCC has specifically identified the practice, by way of an example, whereby certain franchisors deliberately ensure that there is a lack of competition between franchisees in the downstream market. The rationale behind this commercial strategy is allegedly so that the franchisor may extract greater royalties or franchise fees from the respective franchisees, as the franchisee is assured of a lack of competition.

The NCC views this practice as well as a various similar practices as potentially anti-competitive as the structure of certain franchise models may result in collusion between franchisees.

Unlike a number of jurisdictions, including South Africa, however, collusive conduct is not prohibited per se and a franchise agreement or model will, therefore, only amount to a contravention of the Namibia Competition Act if there is (or likely to be) an anti-competitive effect which cannot be justified or outweighed by other pro-competitive or efficiency arguments (i.e. rule of reason arguments).

The rule of reason analysis also extends to ‘minimum resale price maintenance’ (MRPM) under Namibian competition law. Again, unlike the position in South Africa, MRPM is not a per se prohibition (i.e. there is rule of reason defence available to a respondent). MRPM in terms of the South African Competition Act is a controversial topic as in many instances, the very success of a franchise model is dependent on uniformity in pricing across all franchisees. Furthermore, issues such as protecting brand reputation are also generally acceptable commercial practices which may amount to a contravention due to the strict application of the MRPM provisions under South African law.

In Namibia, franchisors therefore have somewhat more flexibility when recommending minimum resale prices than their South African counterparts. It should be noted, however, that the NCC is monitoring franchise models closely to ensure that franchisors do not overstep the mark by implementing a franchise model which has as its object or effect, the lessening of competition in the market.

Cameroon: Opportunities & Challenges

This past Saturday, 11 March 2017, the Cameroonian Embassy in Paris, France, hosted a conference entitled “Cameroun, Destination d’Opportunités: Potentiel et défis” in conjunction with the Association of Cameroonian Attorneys in France.  The full programme is made available to AAT readers here.

1425573796In its afternoon panel on investment in Cameroons, Primerio Ltd. legal counsel, Dr. Patricia Kipiani spoke at length about the country’s high-growth sectors.  Her co-panellists included the Paris bar’s Lynda Amadagana as moderator, and William Nkontchou (ECP Director) and Hilaire Dongmo (Investment Principal at Actis).

SOUTH AFRICA: ZUMA’S STATE OF THE NATION ADDRESS MAY BE HINT AT INTRODUCTION OF COMPLEX MONOPOLY PROVISIONS

While the media headlines are largely filled with the disruptions that took place at the State of the Nation Address (SONA) by President Jacob Zuma on 9 February 2017, the President made an important remark which, if true, may have a significant impact on competition law in South Africa, particular in relation to abuse of dominance cases.

In this regard, the President stated that:

During this year, the Department of Economic Development will bring legislation to Cabinet that will seek to amend the Competition Act. It will among others address the need to have a more inclusive economy and to de-concentrate the high levels of ownership and control we see in many sectors. We will then table the legislation for consideration by parliament.

In this way, we seek to open up the economy to new players, give black South Africans opportunities in the economy and indeed help to make the economy more dynamic, competitive and inclusive. This is our vision of radical economic transformation.”

Patel talksNeither the President nor Minister Patel have given any further clarity as to the proposed legislative amendments other than Patel’s remarks early in January 2017 in which he stated that:

The review covers areas such as the efficacy of the administration of the Competition Act, procedural aspects in the investigation and prosecution of offences, matters relating to abuse of dominance, more effective investigations against cartels and the current public interest provisions of the act.

Says John Oxenham, a competition attorney who has closely followed the legislative and policy developments, “despite the broad non-committal remarks by Minister Patel, it is clear that the Minister is zealous in having the ‘complex monopoly’ provisions brought into force to address in order to address, what the Minister perceives to be, significant abuse of dominance in certain concentrated markets.”

In terms of the provisions, as currently drafted, where five or less firms have 75% market share in the same market, a firm could be found to have engaged in prohibited conduct if any two or more of those firms collectively act in a parallel manner which has the effect of lessening competition in the market (i.e. by creating barriers to entry, charging excessive prices or exclusive dealing and “other market characteristics which indicate coordinated behavior”).

white-collar-crimeDespite having been promulgated in 2009, the ‘complex monopoly’ provisions have not yet been brought into effect largely due to the concerns raised as to how these provisions will be enforced, says Primerio Ltd.’s Andreas Stargard: “It is noteworthy that the introduction of criminal liability for directors and persons with management authority who engage in cartel conduct was also promulgated in 2009, but surprised most (including the Competition Authorities) when it was quite unexpectedly brought into force in 2016.”

Minister Patel was no doubt a key driving force behind the introduction of criminal liability and it would, therefore, not be surprising if the complex monopoly provisions are brought into force with equal swiftness in 2017.

Kenya: Recent Amendments to the Act adds an Interesting Dimension to the Abuse of Dominance Provisions

Introduction of Abuse of ‘Buyer Power’ Provisions Muddies the Water

Ruth Mosoti

By Michael-James Currie and Ruth Mosoti

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In November last year, the editors of Africanantitrust indicated that a number of amendments to the Kenya Competition Act of 2010 were being proposed by way of the Competition Amendment Bill (Amendment Bill) in the article Competition Amendment Bill to bring about Radical changes to the Act

The Amendment Bill was assented to by the President in December 2016 and the amendments are, therefore, effective.

Although most of the amendments which are particularly noteworthy were addressed in the above article, a particularly noteworthy amendment, and very much the focus of this article, is the newly introduced prohibition of an abuse of “buyer power”. In this regard, Section 24 of the Act, which deals with abuse of dominance generally, has been amended to also cater for an abuse of “buyer power.”

Section 24 of the Act was, even prior to the introduction of “buyer power” a particularly challenging provision to interpret and it has not been clear how the provisions relating to an abuse of dominance would ultimately be assessed.

By way of background, the definition of “dominance” in the Act, effectively states that a firm will be considered dominant if that firm has greater than 50% market share

The Act goes on to list, without being exhaustive, a number of practices which would typically constitute an abuse of dominance including:

  • imposing unfair purchasing or selling prices;
  • limiting or restricting output, market access or technological advancements;
  • tying and/or bundling as part of contractual terms; or
  • abusing intellectual property rights.

The Act does not provide further guidance as to what would precisely constitute an “abuse” of dominance and under what circumstances a purchasing or selling price would be deemed to be “unfair”.

The abuse of dominance provisions do not necessarily, therefore, appear to be directly linked to the promotion or maintenance of competition in the market. Once it is shown that a firm has more than 50% market share, firms are in treacherous terrain as the threshold for engaging in “abuse” of dominance is relatively low when compared to many other comparable jurisdictions which generally cater for a rule of reason defence or at least provide greater guidance as to what conduct would constitute a per se violation.

By way of an example, in terms of the South Africa Competition Act, a dominant firm is per se prohibited from charging an “excessive price”. The South African Competition Act does, however, define an “excessive price” as one which “bears no reasonable relation to the economic value thereof”. Despite this definition, further guidance has been sought but the competition authorities as to what, in turn, constitutes a “reasonable” and “economic value.”

Over and above certain identified acts of abuse of dominance, the South African Competition Act also includes for a “catch-all” abuse of dominance provision. However, the conduct will only amount to an “abuse” if there is an anti-competitive effect which cannot be justified by a rule of reason analysis.

The comparison with the South African Competition Act is useful as the Kenyan Competition Act does not provide for a similar assessment as does its South African counter-part. For instance, it is not clear how predatory pricing or excessive pricing would be evaluated under the Kenyan Act. Presumably this would fall under the preclusion of charging an “unfair” selling price, which leads one back to the question as to what constitutes an “unfair” price.

In addition to the above, the recent addition of “buyer power” to the abuse of dominance provisions has added to the complexity and risk to firms on the procurement side.

“Buyer power” is defined as the “the influence exerted by an undertaking in the position or group of undertakings in the position of a purchaser of a product or service to obtain from a supplier more favourable terms, or to impose long term opportunity costs including harm or withheld benefit which, if carried out, would be significantly disproportionate to any resulting long term cost to the undertaking or group of undertakings.

Furthermore, in considering whether a firm has “buyer power” the following factors will be considered:

  • the nature of the contractual terms;
  • the payment requested for access infrastructure; and
  • the price paid to suppliers.

Accordingly, the crux of the rather cumbersome definition is that an undertaking will only be considered to have “buying power” if that undertaking(s) has simultaneously actually abused its’ buying power. In other words, there is no distinction between what constitutes “buying power” and what constitutes an “abuse” of buying power. The Act’s definition of “buying power” is, therefore, all encompassing.

Although the above definition is somewhat unclear, it should be noted that the Competition Authority of Kenya, together with Parliament and other stakeholders intend developing rules which would hopefully clarify how these provisions will ultimately be evaluated.

A further important point to note is that it is not a requirement that a firm be ‘dominant’ in order to be considered to have “buying power”. Whether it was the intention of the legislator to require a firm to first be ‘dominant’ before it could be prosecuted for “abuse of buyer power” is not entirely clear. The definition of “buying power” is remarkably silent on this issue.

The fact that the preclusion of an abuse of buyer power necessitates that a firm be dominant could be inferred by the fact that provision is inserted under Section 24 (the abuse of dominance provisions).

However, the definition of “buyer power” caters for a situation where a group of undertakings, such as when a buying group, is formed, exert buyer power, the group commits an offence. Accordingly, it may have been that the legislator was contemplating a situation in which a group of undertakings, such as a buying group collectively meets the ‘dominance’ threshold (i.e. a greater than 50% market share).

Alternatively, it could have been the intention of the legislator that the abuse of buyer power has no direct link to dominance as such and that once a firm or group of firms satisfy the definition of “buyer power”, irrespective of their market shares, the provision is triggered.

In a number of developing countries such as Turkey, South Africa and Botswana have conducted market inquiries into the grocery retail sector. Although the focus of these inquiries are relatively broad, a common focus of all the market inquiries in this sector relates to the role that the large retailers play in the market. In particular, suppliers and competition agencies are often concerned with the buying power which large retailers could exert on suppliers and that the trading terms are unfair, particularly for smaller retailers who are not always in a position to pay for shelf space, access fees or offer the discounts demanded by the retailers.

In many instances, however, the large retailers are not ‘dominant’ and a complainant would need to demonstrate that the buying power exerted by the large retailer is in fact anti-competitive.

The Kenyan Competition Authority may have thought to pre-empt this challenge and therefore included the “abuse of dominance” provisions without requiring a firm to actually be dominant for the provision to be triggered. Furthermore, the definition of “buying power” and the absence of any requirement that the conduct must in fact be anti-competitive may have been an attempt by the legislator to lower the threshold in an effort to assist a complainant in cases where a purchaser, such as a large retailer, exerts “buyer power”, but is not “dominant” in the market.

The absence of any objective qualification to assess when a firm has exerted “buyer power” in an “unfair” manner may open the litigation floodgates. A further reason why it is important that the authorities publish rules to assist with the interpretation and implementation of the “abuse of buyer” power provisions.

In terms of enforcement, the Act was previously silent on the role of the Authority upon the conclusion of an abuse of dominance investigation and the only option lay on criminal prosecution of the offending undertaking. The recent amendments to the Act now allows the Authority to impose fines of up to 10% of the annual turnover of the offending undertaking(s).

New Zambian Settlement Guidelines: A Risky Reprieve

By AAT Senior Contributor, Michael-James Currie & Mweshi Mutuna, Pr1merio competition advocate (Zambia)

The Zambian Competition and Consumer Protection Commission (‘CCPC’) has recently published draft settlement guidelines (‘Draft Guidelines’) for respondents who have allegedly engaged in conduct in contravention of the domestic Competition and Consumer Protection Act (‘Act’).

zambiaThe Draft Guidelines have been published in addition to the ‘Leniency Programme’ as well as the ‘Fines Guidelines’ published earlier this year (as well as the 2015 Merger Guidelines), and essentially sets out a framework within which respondent parties may engage the CCPC for purposes of reaching a settlement agreement for alleged contraventions of the Act.

Notably, the Draft Guidelines will be binding on the CCPC which is an important aspect of ensuring a transparent and objective approach to settlement negotiations. Furthermore, the Draft Guidelines emphasise that respondents should be fully informed of the case against them prior to settling. In this regard, the Draft Guidelines provide for an initial stage of the settlement negotiations (essentially an expression of interest) which follows from a formal request by a firm expressing an interest to settle.

Should the CCPC decide to proceed with settlement negotiations, the CCPC must, within 21 days, provide the respondent party with information as to the nature of the case against the respondent. This includes disclosing the alleged facts and the classification of those facts, the gravity and duration of the alleged conduct, the attribution of liability (which we discuss further below) and the evidence relied on by the CCPC to support the complaint.

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The authors, Mr. Currie & Ms. Mutuna

The purpose of disclosing these facts to a respondent is to afford a respondent the opportunity to meaningfully consider and evaluate the case against it in order to make an informed decision whether to settle or not.

Assuming that an expression of interest in settling the matter is established by both parties, the CCPC will then proceed by requesting that the respondent provide a formal “settlement submission” within 15 days of the CCPC’s request. Included in the settlement submission, must be a clear and unequivocal acknowledgement of liability (which includes a summary of the pertinent facts, duration and the respondent’s participation in the anticompetitive conduct) and the maximum settlement quantum which the respondent is prepared to pay by way of an administrative penalty.

Should the CCPC accept the settlement submission, the CCPC will then commence with drafting and ultimately publishing a statement of objections (‘SO’) which essentially captures the material terms of the settlement submission. This is largely a necessary procedural step although the respondent party may object to the SO should it not correctly record the terms of the settlement agreement.

Following the publication of the SO, the CCPC will, subject to any challenges to the SO, proceed formally to make the settlement agreement a final decision as required by the Act.

Risky Business?

The above framework appears to be relatively straightforward and balanced, assuming that the parties in fact do reach a settlement agreement. The position is somewhat different in the event that settlement negotiations breakdown, particularly if the negotiations are already at a relatively advanced stage.

Most notably, settlement negotiations in terms of the Draft Guidelines are not conduced on a “without prejudice” basis. To the contrary, the Draft Guidelines states that the CCPC has the right to adopt a SO which does not reflect the parties’ settlement submission. In this event, the normal procedures for investigating and prosecuting a complaint as set out in the Act will apply.

In the event that the CCPC elects not to accept a settlement submission submitted by a respondent, the Draft Guidelines specifically state that “the acknowledgements provided by the parties in the settlement submission shall not be withdrawn and the Commission reserves the right to use the information submitted for its investigation”.

This paragraph is controversial as it places a substantial risk on a party making a settlement submission with no guarantee that the settlement proffer will be accepted by the CCPC, while at the same time, the respondent party exposes itself by making admissions which may be used against it in the course of a normal complaint investigation and determination by the CCPC.

Whether or not the financial incentive to respondents would entice a respondent to, nonetheless, engage in settlement discussions in terms of the Draft Guidelines is sufficient, only time will tell. In this regard, however, the Draft Guidelines state that a firm who settles with the CCPC prior to the matter being referred to the Board will be limited to a maximum penalty of up to 4% of the firm’s annual turnover. Should the firm settle after the matter has been referred to the Board, the maximum penalty will be capped at 7% of the firm’s annual turnover.

Multi-Party Settlements: the More the Better?

A further interesting and rather novel aspect to the Draft Guidelines is the provision made for tripartite settlement negotiations. In this regard, the Draft Guidelines cater for a rather unusual mechanism by which multiple respondents in relation to the same investigation may approach the CCPC for purposes of reaching a settlement agreement.

Although referred to as “tripartite” negotiations, the Draft Guidelines state that when the CCPC initiates proceedings against two or more respondents, the CCPC will inform a respondent of the other respondents to the complaint. Should the respondent parties collectively wish to enter into settlement negotiations, the respondents should jointly appoint a duly authorised representative to act on their behalf. In the event that the respondent parties do settle with the CCPC, the fact that the respondents were represented by a jointly appointed representative will not prejudice them insofar as the CCPC making any finding as to the attribution of liability between the respondents is concerned.

While joint representation may be suitable in the case of merger-related offences (which may have been what was envisaged by the drafters hence the reference to “tripartite” negotiations), we believe that it is hard to imagine that the drafters anticipated that, should respondents to a cartel be invited to settle the complaint against them, the cartelists would then be required to embark on further collaborative efforts: this time to engage collectively in formulating a settlement strategy and decide how they are ultimately going to ‘split the bill’ should a settlement agreement be reached.

The issue of a multi-party settlement submission is further complicated in the event that a settlement proffer is not accepted by the CCPC following a multiparty settlement submission. As mentioned above, the settlement submission must contain an admission of liability which, in the case of cartel conduct, would invariably amount to the parties to the settlement proposal admitting to engaging in cartel conduct by fixing prices or allocating markets, by way of example, between each other.

Although, the Draft Guidelines is a welcome endeavour to provide respondents with a transparent and objective framework to utilise when engaging with the CCPC for purposes of reaching a settlement, the uncertainty and risk which flows from a rejection of the settlement proffer may prove to be an impediment in achieving the very objectives of the Draft Guidelines.

In this regard, we understand that the CCPC is currently considering revised guidelines which hopefully address the concerns raised above.

 

The WRAP: a short COMESA retrospective

COMPETITION-LAW DEVELOPMENTS: A WRAP FROM THE COMP-CORNER

Issue 3 – October 2016

The editors and authors at AAT welcome you to the third edition of “The WRAP”: COMESA Competition Commission: What has taken place in past 10 months?

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The author, Mr. Currie

In this instalment, Senior Contributor Michael James Currie takes a look back at the developments from the COMESA region in 2016.

As always, thank you for reading the WRAP, and remember to visit us at AAT for up-to-date competition-law news from the African continent.

         –Ed.

 

 

Notifying African M&A – balancing burdens & costs

Merger filings in Africa remain costly and cumbersome

By AAT guest contributor Heather Irvine, Esq.

The Common Market for Eastern and Southern Africa Competition Commission (COMESA) recently announced that it has received over US$3 million in merger filing fees between December 2015 and October 2016.

heatherirvineAbout half of these fees (approximately $1.5 million) were allocated to the national competition authorities in various COMESA states. However, competition authorities in COMESA member states – including Kenya, Zambia and Zimbabwe – continue to insist that merging parties lodge separate merger filings in their jurisdiction. This can add significant transactional costs – the filing fee in Kenya alone for a merger in which the merging parties combined generate more than KES 50 billion (about US $ 493 million) in Kenya is KES 2 million (nearly US $ 20 000). Since Kenya is one of the Continent’s largest economies, significant numbers of global transactions as well as those involving South African firms investing in African businesses are caught in the net.

Merging parties are in effect paying African national competition authorities twice to review exactly the same proposed merger. And they are not receiving quicker approvals or an easier fling process in return. Low merger thresholds mean that even relatively small transactions, often with no impact on competition at all, may trigger multiple filings. There is no explanation for why COMESA member states have failed to amend their local competition laws despite signing the COMESA treaty over 2 years ago.

Filing fees are even higher if a proposed cross-border African merger transaction involves a business in Tanzania or Swaziland– the national authorities there have recently insisted that filing fees must be calculated based on the merging parties’ global turnover (even though the statutory basis for these demands are not clear).

The problem will be exacerbated even further if more regional African competition authorities, like the Economic Community of West African States (ECOWAS) and the proposed East African Competition authority, commence active merger regulation.

Although memoranda of understanding were recently signed between South Africa and some other relatively experienced competition regulators on the Continent, like Kenya and Namibia, there are generally few formal procedures in place to harmonise merger filing requirements, synchronise the timing of reviews or align the approach of the regulators to either competition law or public interest issues.

The result is high filing fees, lots of duplicated effort and documents on the part of merging parties and the regulators, and slow merger reviews.

If African governments are serious about attracting global investors, they should prioritise the harmonisation of national and regional competition law regimes.

Copperweld elsewhere: Why SA is not pursuing fisheries “cartel”

The concept of single economic entities and intra-company conspiracies

 

Kipiani and Tchapga: advancing competition law & economics in Cameroon

Competition Law conference provides most in-depth look at the state of Cameroonian antitrust law

Event organised by Dr. Patricia Kipiani and Prof. Tchapga of Primerio & CEMAC, the Cameroon school of business and its competition law section

What follows is an article that appeared in French in the Le Droit journal, written by Stéphane Ngoh, reprinted here with permission.  An English translation is below.  An interview with Dr. Kipiani related to the conference can be found here.  In it, she discusses the planned creation of a “Competition Observatory” for the country.

Le cabinet Primerio International a organisé un séminaire de sensibilisation aux enjeux du droit et de la politique de la concurrence au Cameroun et dans l’espace de la CEMAC. L’évènement lancé par le ministre du Commerce, M. Luc Magloire Mbarga Atangana s’est déroulé le 7 juillet 2016 au siège du GICAM à Douala.

Présenter la concurrence comme « un bien commun » à la collectivité et « renforcer la pédagogie de la concurrence dans ses dimensions juridiques et politiques» tels peuvent être les maitres mots du premier « rendez-vous de la concurrence» au Cameroun et en CEMAC impulsé par le cabinet d’expertise Primerio International et placé sous le thème «Du droit et de la politique de la concurrence au Cameroun et dans l’espace CEMAC ».  Comme pour en souligner toute l’importance, le ministre du Commerce du Cameroun, Luc Magloire Mbarga Atangana, a fait le déplacement de la capitale économique dans l’optique d’en présider le lancement officiel. Le Docteur en droit et avocate au barreau de Bruxelles, Mme Patricia Kipiani, qui représentait le cabinet Primerio International pour l’occasion a expliqué combien cette première édition des « rendez-vous de la concurrence », se voulait sérieuse. Toute chose ayant justifié l’association aussi bien des universitaires de tous bords, du groupement inter-patronal du Cameroun (Gicam) que des autorités publiques camerounaises. Les Chercheurs de l’Université de Paris 1 Panthéon-Sorbonne en France et les spécialistes du droit de la concurrence, le Professeur des universités Martine Behar-Touchais et l’enseignant-chercheur Laurent Vidal ont fait le déplacement du Gicam.

1425573796Le ministre du Commerce, qui intervient comme l’autorité publique de tutelle du secteur de la concurrence, a tenu à préciser que les rendez-vous de la concurrence ne pouvaient mieux tomber dans un contexte communautaire et camerounais situé à « la veille de l’entrée en vigueur des Accords de partenariat économique « APE », entre les pays ACP et l’UE dont le Cameroun est partie », ces accords qui impliquent une ouverture de l’économie imposent donc qu’un certain accent soit mis sur le droit et la politique de la concurrence. Au demeurant, le représentant de l’Etat du Cameroun à ce rendez-vous a tenu à réaffirmer la place reservée jusqu’ici à la concurrence, « notre conviction, a –t-il expliqué, est que le commerce a besoin d’un environnement sain et c’est la raison pour laquelle un arsenal des textes législatives ou règlementaires existe au Cameroun et cela témoigne de la volonté de l’état de réguler le secteur ». A l’appui de son affirmation, M. Luc Magloire Mbarga Atangana a soutenu que la volonté et la détermination du Cameroun à faire du droit de la concurrence un enjeu de poids, se traduit depuis des années. Pour s’en féliciter, il souligne que les premières velléités d’encadrement de la concurrence remontent aux années1990 et qu’autant les lois ont créé la Commission nationale de la concurrence (Cnc) autant des décrets  en ont fixés les contours organisationnels et structurels. Le président de ladite Commission Léopold Boumsong, qui était dans la suite du Mincommerce, a été appelé à présenter les aspects nationaux de la concurrence et précisément le rôle de la Commission nationale de la concurrence. Ce rôle, comme l’a martelé le ministre, doit s’attacher à « poursuivre et sanctionner les pratiques anticoncurrentielles, en s’appuyant sur des textes datant et nouveau à l’instar de la loi cadre protection sur la consommation, de la nouvelle loi portant organisation des activités commerciales ainsi que la loi sur commerce extérieur ».

TROIS GRANDES PRATIQUES ANTICONCURRENTIELLES

cameroonLe président de la Cnc a précisé à l’égard des chefs d’entreprises qui emplissaient la salle du Gicam qu’il existe sommairement 3 types de pratiques qui ont « pour effet d’empêcher, de fausser ou de restreindre de manière sensible, l’exercice de la concurrence au niveau du marché intérieur » au sens de la loi n°98/013 du 14 juillet 1998 relative à la concurrence. Il s’agit des abus d’une entreprise ou d’un groupe d’entreprises en position dominante sur le marché, des fusions et acquisitions d’entreprises et aussi des accords anticoncurrentiels. L’un dans l’autre, il est apparu que les pratiques anticoncurrentielles au Cameroun sont constatées par procès-verbal dressé par les membres de la Commission suite aux enquêtes consécutives à une plainte d’une personne physique ou morale ou à celles initiées par eux-mêmes.

Par la suite, les aspects multilatéraux de la concurrence ont été évoqués au travers de la présentation du rôle de la Conférence des Nations Unies sur le Commerce et le Développement (CNUCED) en matière l’accompagnement des politiques de concurrence. L’économiste de la CNUCED, Yves Kenfack a découvert le code CNUCED de la concurrence dont il a salué la pertinence tout en regrettant que celui-ci ne soit pas contraignant pour les Etats signataires.

Un autre moment des échanges a porté sur les aspects croisés entre le point de vue de l’économiste et celui du juriste quant à la concurrence. C’est M. Flavien Tchapga, économiste, consultant lui aussi à Primerio International et professeur associé à l’Université Senghor d’Alexandrie, qui s’y est attelé face à l’auditoire de la salle des conférences du Gicam. L’intervention de ce dernier peut se ramener à une suggestion forte faisant suite à l’interrogation suivante : « peut-on réussir la sensibilisation sur la concurrence si l’on ne tient pas compte des spécificités de l’environnement local ? ». Réponse, en effet, dans un contexte où 9 entreprises sur 10 sont individuelles, il faut se méfier des formules des juristes qui sont souvent larges et complexifiées pour les économistes plus proches du terrain.

Au cours du rendez-vous de la concurrence, une table-ronde a été ouverte pour asseoir la dimension didactique de la rencontre. Les débats et les questions étaient placés sous la houlette de M. Martin Abega, administrateur de sociétés, ancien membre de la Commission nationale de la concurrence et Consul honoraire du Royaume des Pays-Bas au Cameroun.

En dernière analyse, les expériences pratiques de règlementations et de politiques de la concurrence en Europe et au Cameroun ont clairement été croisées par le biais de Martine Behar-Touchais et Laurent Vidal d’une part et de Me Abdoul Bagui d’autre part. Etant entendu qu’au Cameroun, la régulation est émiettée par secteur d’activités.

Ce sont concrètement toutes les difficultés liées au libre exercice de la concurrence qui ont été passées au crible. La contrebande, la persistance des monopoles dans certains domaines ou encore la contrefaçon relèvent de ces écueils épluchés par les soins des experts internationaux et locaux à l’instar des représentants du CNUCED, de CEMAC, de l’OHADA et surtout des entreprises camerounaises. Le Dr. Patricia Kipiani a expliqué qu’il était important que « les réflexions et les échanges reviennent sur les difficultés auxquelles se heurtent les entreprises, sur les difficultés liées à la concurrence déloyale, à leur impact sur le secteur informel et autres activités informelles des entreprises formelles. Et aussi qu’ un accent soit mis sur la réglementation et sur les politiques économiques susceptibles de promouvoir notre espace économique ».

Stéphane Ngoh


For our English readers, below is a Google Translate version in English of the article:

The international  firm Primerio organized an awareness seminar on issues of law and competition policy in Cameroon and in the CEMAC zone. The event launched by the Minister of Trade, Luc Magloire Mbarga Atangana Mr. took place July 7, 2016 at the headquarters of GICAM in Douala.

Introduce competition as a “common good” to the community and “strengthen the teaching of competition in its legal and political dimensions” — such are the watchwords of the first “meeting competition” in Cameroon and driven CEMAC by the consultancy firm Primerio International and under the theme “from the law and competition policy in Cameroon and in the CEMAC.” As if to emphasize the importance, the trade minister of Cameroon, Luc Magloire Atangana Mbarga, made the trip from the economic capital with a view to chair the official launch. The Doctor of Law and lawyer at the Brussels Bar, Patricia Kipiani, who represented the firm Primerio International for the occasion explained how this first edition of “appointments of competition”, was meant seriously. Anything that justified the association both academics of all stripes, the inter-group employers of Cameroon (Gicam) that the Cameroonian public authorities. The researchers from the University of Paris 1 Panthéon-Sorbonne in France and specialists from the competition law, the University Professor Martine Behar-Touchais and Laurent Vidal teacher-researcher made the trip from Gicam.

Minister of Commerce, which acts as a public authority supervising the sector to competition, has insisted that the appointment of the competition could not get better in a community and Cameroonian context located “on the eve of the entry into force of the economic partnership agreements ‘EPAs’, between the ACP countries and the EU which Cameroon is a party “, these agreements which involve opening up the economy therefore require that a certain emphasis on law and the competition policy. Moreover, the representative of the State of Cameroon to this appointment held to reaffirm the place reserved far in the competition, “our conviction has -t he explained, is that the trade needs a healthy environment and that is why an arsenal of legislative and regulatory texts exist in Cameroon and it demonstrates the willingness of the state to regulate the sector. “ In support of its contention, Luc Magloire Atangana Mbarga argued that the will and determination of Cameroon to the competition law of a weight issue, resulting in years. To be welcomed, he stressed that the first framework for competition ambitions date back to the 1990’s and that so many laws created the National Competition Commission (CNC) as decrees have laid the organizational and structural contours. The president said Leopold Commission Boumsong, who was later in the MINCOMMERCE, was called to present the national aspects of competition and specifically the role of the National Competition Commission. This role, as insisted the minister, must strive to “prosecute and punish anti-competitive practices, based on texts dating and new like the law under protection on consumption, the new law on the organization of business and the foreign trade Act. “

THREE MAJOR ANTI-COMPETITIVE PRACTICES

The president of the CNC said against business leaders who filled the room Gicam there summarily 3 types of practices which have “the effect of preventing, distorting or restricting significantly, the year of competition in the internal market “under law No. 98/013 of 14 July 1998 on competition. This is abuse of a company or group of companies in a dominant market position, mergers and acquisitions as well as anti-competitive agreements. One the other, it appeared that anti-competitive practices in Cameroon are recorded in minutes drawn up by the Commission of the members following the investigations following a complaint from a natural or legal person or those initiated by them -Same.

Thereafter, the multilateral aspects of competition were discussed through the presentation of the role of the United Nations Conference on Trade and Development (UNCTAD) in support for competition policy. The economist of UNCTAD, Yves Kenfack discovered the UNCTAD code of competition which he praised the relevance while regretting that it was not binding on the signatory states.

Another moment of trade covered the Crusaders aspects between the views of the economist and that of the lawyer about the competition. It was Mr. Flavien Tchapga, economist, consultant also to Primerio International and associate professor at the Senghor University of Alexandria, which it is harnessed facing the audience of the Gicam conference room. The intervention of the latter can be reduced to a strong suggestion in response to the following question: “can we succeed awareness on competition if it does not take into account the specificities of the local environment? “. Response, in fact, in a context where 9 out of 10 companies are individual, beware formulas lawyers who are often larger and more complex to the nearest economists ground.

During the appointment of the competition, a panel discussion was opened to establish the educational dimension of the encounter. The debates and issues were under the leadership of Mr. Martin Abega, corporate director, former member of the National Competition Commission and Honorary Consul of the Kingdom of the Netherlands in Cameroon.

Ultimately, the practical experiences of regulations and competition policies in Europe and Cameroon have clearly been crossed through Martine Behar-Touchais and Laurent Vidal one hand and Mr. Abdul Bagui other. It being understood that in Cameroon, regulation is broken by sector.

These are all practical difficulties related to the free exercise of competition that were screened. Smuggling, the persistence of monopolies in certain areas or counterfeiting within these pitfalls peeled for the service of international and local experts like the representatives of UNCTAD, CEMAC, OHADA and especially Cameroonian companies. Dr. Patricia Kipiani said it was important that “the reflections and exchanges back on the difficulties firms face, the difficulties related to unfair competition, their impact on the informal sector and other informal activities formal businesses. And also that an emphasis on regulation and economic policies that promote our economic space. “