Book Review: “Making Markets Work for Africa: Markets, Developments and Competition Law in Sub-Saharan Africa” by Eleanor M. Fox and Mor Bakhoum

Thanks to the diverse and on-going commitments by our contributors, AfricanAntitrust is considered the leading resource tracking competition law developments across the continent. AfricanAntitrust has, over the past number of years published numerous articles, updates and expression pieces by numerous contributors both in an effort to ensure our readership remains up to date on all regulatory developments in Africa, and also to stimulate robust debate on competition policy and enforcement across the continent.

Developing countries have unique socio-economic issues and market dynamics which many have argued justify a unique approach to the role competition law policy should play.

The editors at AfricanAntitrust were, therefore, particularly interested in the book authored by well-known Professor, Eleanor Fox and co-author Mor Bakhoum . AAT is honoured to have been requested to provide a book review and indebited to John Oxenham, Andreas Stargard and Michael-James Currie for their commentary below.

The book’s title Making Markets Work for Africa: Markets, Developments and Competition Law in Sub-Saharan Africa provides significant insight into its subject matter and the topics covered. As an introductory remark, the content provides a concise but necessary introduction to the social, political and economic challenges which underpin most sub-Saharan jurisdictions. Readers who may not be familiar with the jurisdictions covered in the book will find this useful for purposes of contextualising the competition policy debate and the nuances which underpin this debate.

After sketching an overview of the economic and political background, the authors go on to detail the relevant competition laws and the application thereof across the sub-Saharan jurisdictions.

The authors have, usefully, selected certain key enforcement activities in each of the jurisdictions covered in an effort to demonstrate the robustness of the respective agencies’ enforcement activities.

The authors then do a neat job of teeing up the crux of the debate, should competition law in developing countries converge towards a ‘global standard’ (which in this context refers primarily to US and EU precedent) or rather, do market and socio-political challenges which are often unique to most sub-Saharan countries, require a different set of rules, benchmarks or policy outlooks to competition policy and enforcement. In this regard, the authors provide a useful platform for debate among competition lawyers, economists, academics and law makers alike.

The book was not intended to provide a complete and robust assessment of the multitude of policy options available when developing competition law. Further, the authors have elected not to engage in a highly technical critique or assessment of the key decisions which have shaped competition policy across the African continent. Rather, the authors highlight the need to consider and debate different policies.

The authors correctly highlight South Africa as the “golden standard” insofar as competition law enforcement in developing countries is concerned – particularly in relation to the role of public interest enforcement in merger reviews. The authors discuss the seminal case in this regard, namely the Walmart/Massmart merger, as the foundation from which numerous subsequent mergers have been approved subject to public interest related conditions.

While the Walmart/Massmart merger was finally approved in 2013, the authors may consider, in subsequent editions, whether the substantial litigation and interventionist risks which are inherent in assessing public interest factors in competition law enforcement (particularly merger control) can be quantified. A departure from traditional competition law standards and precedent, particularly with the introduction of subjective considerations, is likely to increase the scope for litigation and interventionist strategies which may hinder the very objectives sought to be advanced.

The authors do, however, recognise that when assessing competition policy, one must consider the objectives of the policy against its practical enforcement – particularly in light of the principle of rule of law and sound economic analysis. The book certainly does not profess to ignore these and at numerous instances expressly or implicitly acknowledges that a transparent and objective competition enforcement regime is critical.

With the “hipster antitrust” movement ostensibly gaining traction in the US and EU, South Africa (and indirectly Africa more generally) it would appear there is a more mainstream deviation from traditional competition law enforcement. It certainly suggests a uniform standard in competition policy may become even more difficult to sustain. Alternatively, it may be the inherent complexity and trade-offs which are always at play in developing competition policy which may in fact necessitate a form of convergence. The authors give some insight into these trade-offs and the various factors which legislators and practitioners should take into account.

The authors also raise a number of issues which are often left out of the policy debate, yet play a crucial role in the efficacy of competition law enforcement in developing countries.

Factors such as political interference, corruption (as an overarching concern) and the limited resources available to many African competition agencies contribute to certain markets remaining inaccessible to new entrants and preclude efficiencies from materialising to the benefit of consumers. The authors point out, quite correctly, that judgments or decisions by agencies are often entirely devoid of substantive reasons let alone robust economic analysis.

The above recognition further reinforces the need for objectivity and transparency in developing competition enforcement regime.

Finally, readers will find the authors’ discussion on the regional blocs in Africa (COMESA, SADC, EAC) and explore the level of harmonisation between these regional blocs and their respective members states.

The timing of the book in this regard could not be more apposite in light of the current negotiations regarding a uniform African competition policy as contemplated by the African Continental Free Trade Agreement.

We congratulate the authors on this important and well researched text.

 

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CRESSE CONFERENCE GREECE 2019: SOUTH AFRICAN AMENDMENT ACT

Africanantitrust regular contributors John Oxenham, Michael-James Currie and Stephany Torres (Primerio and Nortons Inc) authored and presented a paper on the role of non-competition law factors in competition law enforcement at the 2019 CRESSE Conference in Rhodes Island, Greece in early July 2019.

Motivated by the recent, but significant, amendments to South Africa’s Competition Act, the timing of the authors’ paper could not have been better scripted. The Amendment Act was brought into effect on 12 July 2019 – a week after presenting the paper to an esteemed delegation of competition law practitioners and economists.

The paper, titled “South African Competition Law – The role of non-competition factors in enforcing unilateral conduct: Forging ahead or falling behind?” explores the socio-economic context and objectives which underpin the recent amendments to South Africa’s legislation and highlights the expansion of what is often termed “public interest” considerations in competition law enforcement beyond merger control.

Most notably, the authors contextualise the policy debate before providing an in-depth discussion of the new thresholds and standards against which certain abuse of dominance conduct will now be assessed.

The Amendment Act introduces a public interest standard, namely what the effect of certain conduct by dominant entities will have on the ability of “small, medium businesses and businesses owned by previously disadvantaged persons” to participate effectively in the market”.

Looking specifically at the price discrimination and buyer power provisions, the paper notes that, notwithstanding the noble objectives of the Amendment Act, there are potentially a number of unintended consequences which require further deliberation so as not to dampen pro-competitive conduct.

In relation to the price discrimination provisions, the authors conclude that:

Accordingly, in light of:

  • the low market share threshold applicable to “dominant” entities;
  • the uncertainty regarding the threshold that must be met in order to sustain a case of prohibited price discrimination;
  • the evidentiary burden on a respondent to essentially prove a negative in relation to section 9(3); and
  • the threat of an administrative penalty for a first-time offence (potentially on both the South African business and its parent),

the price discrimination provisions pose a material risk to companies in South Africa who have a market share above 35%.”

As part of the presentation of the paper, it was noted that competition policy globally is constantly evolving. Issues such as “big data” and “data protection” have called on antitrust commentators to question whether the existing laws remain adequate to address broader consumer harm concerns. In South Africa, the authors point out that while the South African competition agencies have traditionally turned to European and US precedent in relation to antitrust enforcement, the socio-economic factors which have shaped competition policy in South Africa (at least from Government’s perspective) is unique and constitutes a substantial departure from more established jurisdictions.

Competition policy globally is, therefore, likely to be more divergent than convergent in the next few years.

In concluding, the authors point to the inordinate responsibility placed on the shoulders of the competition agencies in South Africa to exercise their discretion and develop a body of precedent as soon as possible that would hopefully provide practitioners and business with a more objective and transparent benchmark against which to assess their conduct. A task which could prove highly complex as the authorities will inevitable need to develop an objective basis for quantifying public interest considerations – an inherently subjective exercise.

To obtain a copy of the paper, please email the AAT editor by following the contact link below.

 

 

 

 

 

SOUTH AFRICA: COMPETITION COMMISSION PUBLISHES INTERIM REPORT RE GROCERY RETAIL MARKET INQUIRY

By Charl van der Merwe

Introduction

The South African Competition Commission (“SACC”) on Wednesday 29 May 2019 released its interim report on its findings in the Grocery Retail Sector Market Inquiry (“Inquiry”).

The Inquiry’s terms of reference, published in October 2015, mandated the SACC to investigate:

  • The impact of the expansion, diversification and consolidation of national supermarket chains on small and independent retailers in townships, peri-urban and rural areas and the informal economy;
  • The impact of long term exclusive lease agreements entered into between property developers and national supermarket chains, and the role of financiers in these agreements on competition in the grocery retail sector;
  • The dynamics of competition between local and foreign national operated small and independent retailers in townships, peri-urban areas, rural areas and the informal economy;
  • The impact of regulations, including inter alia municipal town planning and by-laws on small and independent retailers in townships, peri-urban areas, rural areas and the informal economy;
  • The impact of buyer groups on small and independent retailers in townships, periurban areas, rural areas and the informal economy;
  • The impact of certain identified value chains on the operations of small and independent retailers in townships, peri-urban areas, rural areas and the informal economy.”

The Inquiry received extensive submissions from industry stakeholders including large grocery retailers (“larger retailers”), FMCG suppliers, banks, shopping center property developers (“property developers”) and small and independent retailers.  The public hearings of the Inquiry were held in all major cities during April 2017 to November 2017 with further ‘informal hearings’ in smaller towns across South Africa.  The Interim Report was hailed by SACC Commissioner, Tembinkosi Bonakele (“Commissioner”) at the media briefing on 29 May 2019 as the most comprehensive study into all elements of the grocery retail sector.

Industry stakeholders will have a further opportunity to engage with the SACC on the findings of the interim report and to present further written submissions before Friday 28 June 2019. The Final Report is expected to be released on 30 September 2019.

Key Findings

Long Term Exclusive Lease Agreements and Rental Costs

The Inquire placed great emphasis on the practice of long term exclusive lease agreements entered into between large retailers and property developers apropos new shopping malls and other property developments. The Inquiry found that these exclusive lease agreements range for periods of up to 45 years, constituting what the Inquiry termed unnecessary artificial barriers to entry.

A central focus of the Inquiry was the significant market power of the large retailers which enable large retailers to negotiate long term exclusive lease agreements, lower rental fees and more favorable rebates from suppliers.

The Inquiry found that property developers are reliant on the large retailers’ participation in new property developments (as anchor tenants) as they attract customers to the development and are also required by banks and other financial houses to advance funding to property developers. It is noteworthy that the Inquiry found that contrary to the submissions made by large retailers, finance houses do not demand exclusivity (only a fixed terms commitment from an anchor tenant). The practice of exclusivity was introduced by the large retailers as compensation for risk.

The Inquiry found that the prevalence of the long term exclusive lease agreements had the effect of reinforcing the levels of concentration in the market as the ‘process’ repeats itself which each new  development. While this does mean that new competitors are foreclosed from the market, significantly, it also excludes small and independent specialist retailers such as butcheries, bakeries etc, which, according to the Inquiry, deprive consumers of ‘bespoke’ or ‘craft’ products which characterizes the retail sector in other areas of the world.

The Inquiry found the submissions made by the large retailers as ‘not compelling’ and has recommended that:

  • Large retailers immediately cease enforcing exclusivity provisions against specialty stores (which was undertaken by the large retailers); and
  • Exclusivity clauses be ‘phased out’ within 3 years (and no new lease agreements be entered into that contain exclusivity) in order to allow new entrants into developments.

A second but related finding of the Inquiry is that large retailers are able to use their bargaining power to negotiate lower rental fees in property developments which, according to the findings, causes property developers to increase rental fees for small and independent stores in order to ‘recoup’ the discount offered to the large retailers.

The Inquiry heard evidence from a variety of small retailers and specialty stores (as well as property developers) that the higher rental fees in property developments hinders entrance or leads to the failure of small retailers and specialty stores. Interestingly, the Inquiry did not make any recommendations in this regard and, instead, called for further submissions on the commercial realities and possible remedies.

Rebate Structures

The Inquiry found that that the large retailers also enjoy significant market power, compared to independent retailers and wholesalers, as they provide a key route to market for suppliers. Accordingly, the Inquiry found that large retailers are able to extract more favorable trading terms than that which wholesalers and/or buying groups are able to negotiate. Interestingly, however, the Inquiry found that large retailers are able to extract larger rebates than buyer groups, despite the larger volumes purchased by buyer groups.

According to the SACC chief economist, James Hodge, the primary concern is not ‘basic rebates’ which are also available to buyer groups and wholesalers but rather the ‘special retail rebates’ (e.g. distribution center rebates, store opening rebates, advertising rebates etc.) which are not available to wholesalers or buying groups.

In this regard, the Inquiry found that the justification for these ‘special retail rebates’ are unconvincing as the knock-on effect is that the independent retailers or specialty stores at the retail level (who purchase stock from wholesalers and buyer group) face higher costs and cannot compete with the large retailers.

The Inquiry recognizes that rebates are not inherently anti-competitive and can often be justified. The Inquiry further found that the current rebate structures cannot be easily changed without commercial disruption. The Inquiry, therefore, did not make any recommendations and, instead, invited industry stakeholders to engage with the Inquiry in order to address the issue.

Other

The Inquiry also recommend intervention, through regulation, by a “single government department”. The department was not specified due to the uncertainty on whether the Economic Development Department (“EDD”) will remain in its current form. The EDD has now been subsumed into the Department of Trade and Industry (“DTI”), which will be headed by former EDD minister, Minister Ebrahim Patel. The DTI is, therefore, likely to be nominated as the relevant governmental department.

As an alternative, the Inquiry recommend an industry code of conduct, which requires buy in from industry stakeholders to agree on and implement policies which would otherwise cause commercial disruption.  Industry codes appear to be increasingly finding favour with the SACC as a form of soft enforcement. There is currently a draft Code of Conduct published in relation to the Automotive Aftermarket.

In this regard, the SACC Commissioner noted that the grocery retail sector is a sector which is known around the world for being highly regulated and, according to the Inquiry, is not conducive to the levels of concentration experienced in South Africa. The Commissioner, therefore, remarked that the sector cannot wait for the slow and costly process of regulating conduct through enforcement and should, instead, be remedied through ideally am industry code of conduct and/or regulation.

Asked to comment on the impact of the Code, John Oxenham says that “the timing of the Code is noteworthy in light of the Competition Amendment Act and draft buyer power and price discrimination regulations having been published. Dominant entities involved in the FMCG sector, will likely have to carefully evaluate their trading terms to ensure that they are objectively justifiable not only in light of traditional competition law principles but also public interest related objectives“.

Fellow competition lawyer, Michael-James Currie concurs with Oxenham and suggests that “while rebates can be anti-competitive, there needs to be robust evidence and a clear theory of harm before an anti-competitive finding. This ordinarily requires a case specific assessment based on the facts at hand which may make ‘industry wide’ reforms difficult to monitor and enforce. Likewise, rebates are nor per se anti-competitive and therefore industry wide reforms or blanket thresholds may have unintended consequences and potentially have adverse effects on consumer welfare.”

Oxenham suggests that a “carefully balanced approach must be taken in this regard, although this appears to be recognized by the SACC“.

It is clear from the Report that industry participants will ultimately need to justify and support any alleged pro-competitive effects based on clear and objective evidence.

 

 

 

Plus ça change… Merging parties should continue as before in Nigeria

FCCPA in effect – but not quite, as FCCPC not yet fully operational

As AAT reported previously, the landmark Federal Competition & Consumer Protection Act (FCCPA) that suddenly went into effect in Nigeria earlier this year has not quite been operationalised.  Notably, the agency that is supposed to be tasked with enforcing the FCCPA, the Federal Competition & Consumer Protection Commission (FCCPC) is currently “undergoing construction”, so-to-speak.  An African competition-law practitioner with Primerio notes that “apparently there has been some political wrangling around the constituents of the FCCPC’s Board,” which is unsurprising, to say the least.  One might be inclined to say, Plus ça change, plus c’est la même chose…, as politics has always played a major role in Nigerian enforcement.

That said, the AAT editor does understand that, at a minimum, the Director General of the existing Consumer Protection Council, Babatunde Irukera, will serve in some capacity with the FCCPC — it is unknown whether the remaining 5 CPC commissioners will likewise continue to act for the FCCPC or not.  (Screenshots of his Twitter account below, indicating a full-blown transition from the CPC to the FCCPC).

One indication of the lack of the FCCPC’s operational status when it comes to mergers is that its web site (presumably soon to be http://fccpc.gov.ng/) still yields an error message.  Another is a recent joint statement issued by the SEC and its yet-to-be-established counterpart, which provides in relevant part as follows:

In order to ensure continuing and seamless commercial transactions and market operations, SEC and FCCPC have come to a mutual understanding with respect to these transactions within the transition period, which pursuant to this notice commences immediately, and shall remain in force until otherwise discontinued by further Advisory or Guidance.

During this transition period, starting today, May 3rd, 2019:

  • All notifications or fillings will be reviewed under existing SEC Regulations, Guidelines and Fees.
  • Notifications will be filed at FCCPC OR SEC/FCCPC Interim Joint Merger Review Desk at SEC.
  • All applicable fees will be paid to the FCCPC.
  • SEC and FCCPC will jointly review notifications and FCCPC will convey decisions with respect to the notifications.

Notifications previously received by SEC, but yet to be decided, will be subject to the interim process above and FCCPC will convey the decisions accordingly.

We will update AAT’s readership with new intel as soon as it becomes available.  For the time being, the status quo remains largely intact.  Says Andreas Stargard, an antitrust practitioner:

For now, merger parties should proceed as before, namely: analyse your transaction under the Investment & Securities Act (ISA), and file with either the SEC or the FCCPC — some advise to file with the SEC for the time being, if applicable, as the lack of full operational status of the FCCPC does not bode well for procedural thoroughness or guaranteed document retention in this early phase.  That said, if your transaction has a longer time horizon, with closing potentially several months down the road, your counsel should take into account the very real possibility of there being a notification under the FCCPA, even if none was required under the ISA.  I expect the FCCPC to set merger notification thresholds very soon.”

Osayomwanbor Bob Enofe, an academic and proponent of the Nigerian competition law notes, however, that the current interim arrangement “only suggests to me that the SEC currently leads, concerning merger enforcement in Nigeria, rather than clarifying that the FCCPC is not existent (especially given the transitional period established by the two Commissions).”  He continues: “The erstwhile CPC might be revamped to reflect a more competition-law cognisant staff base,” noting that “various competition law offences now exist in Nigeria,” of which cartel conduct is punishable not only my monetary fines but also criminally under the FCCPA.

South Africa: Trilogy of Rulings Against the Competition Commission Demonstrates the Importance of Following Proper Procedure

In three recent decisions, two by the Competition Tribunal and one by the Competition Appeal Court, a number of important procedural flaws were exposed in the manner in which certain complaints were initiated against various respondents. The Competition Appeal Court even made an adverse costs order against the Competition Commission in one of the cases. We discuss these important decisions below.

Misjoinder of Parent Company

The South African Competition Commission (“SACC”) had recently alleged that Power Construction (West Cape) Pty Ltd (“West Cape”) and Haw and Inglis (Pty) Ltd (“H&I”) colluded in respect of a tender submitted to South African National Roads Agency (SANRAL). The tender was in respect of maintenance services. The SACC alleges both parties had contravened section 4(1)(b)(ii) and (iii) of the South African Competition Act (the “Act”).  The parent company of West Cape, Power Construction (Pty) Ltd (“Power Construction”) was cited as a respondent on the basis that it would be liable to pay the administrative penalty. Power Construction, had engaged in “with prejudice” settlement negotiations.

The SACC refused the proffer and informed Power Construction that after having  considered the settlement proceed that it was clear that Power Construction and West Cape (being the subsidiary of Power Construction) shared a majority of their respective directors which, according to the SACC, was sufficient to implicate Power Construction in the alleged collusive conduct. Accordingly, the SACC alleged that any Administrative Should be calculated using the higher annual turnover figures of Power Construction.

Power Construction disputed this, arguing that it was never alleged by the SACC that Power Construction had contravened the Act. The SACC then opted to amend its referral to include Power Construction. On application to the South African Competition Tribunal (“Tribunal”), the Tribunal dismissed the proposed amendment on the basis that the SACC had failed to provide any material evidence to establish a prime facia case in favour the relevant amendment, stating that the burden remains on the applicant to prove that it is deserving of the amendment by putting sufficient factual allegations before the Tribunal.

In conclusion, the Tribunal also confirmed that the amendment could regardless have been rendered excipiable based on prescription. In this matter, the alleged conduct ceased more than three years prior to the Commission becoming aware of the conduct.

Prescription

In a further case, namely the Competition Commission and Pickfords Removals SA, regarding the interpretation of section 67(1) of the Act (namely that dealing with prescription), the Competition Appeal Court (“CAC”) was very recently called to decide on the correct date for the running of prescription in terms of section 67(1) of the Act.

The SACC (being the appellant in the matter), brought an appeal to the CAC after the Tribunal held that the complaint initiated by the SACC was time barred in terms of section 67 of the Act.

The SACC disputed this and submitted that prescription in terms of section 67 of the Act should only commence from the date on which the Commissioner or Complainant acquired knowledge of the prohibited practice and, alternatively, that the Tribunal has a discretion to condone non-compliance with this 3-year time period. The latter issue was central to the dispute.

The question was further complicated by the fact that the SACC filed two compliant initiations against the respondents. The SACC submitted that the so called ‘second initiation’ was merely an amendment to the first initiation. So the SACC argued, even if the time period had begun running when the practice had stopped, the time period in question would still not have expired.

In this regard, the CAC held that the SACC has the power to amend a compliant initiation and that it must be taken at its word on whether a second initiation is an amendment to the first or a separate and distinct complaint initiation. This is so, particularly where both complaint initiations concern the same conduct, in the same market and where the first complaint initiation states that the conduct is ongoing.

In relation to the issue of prescription, the CAC held that section 67 cannot be equated with section 12 of the South African Prescription Act which provides for prescription to commence  from the moment on which the “creditor acquires knowledge of the identity of the debtor and the relevant fact from which the debt arises”. Section 49B(1) of the Prescription Act provides for a much lower threshold, being the ‘reasonable suspicion of the existence of a prohibited practice’.

Accordingly, it must be accepted that the time bar in section 67 is intended to be a limitation of the Commissioner’s wide ranging powers (to prevent investigation into historic matters which are no longer in the public interest) and that the knowledge requirement contained in the Prescription Act cannot be read into this limitation as argued by the SACC. It follows then, based on this reasoning that there can similarly be no condonation by the Tribunal or the CAC on these matters.

For completeness sake, the CAC confirmed the general understanding that, for purposes of section 67, the alleged prohibited conduct will be deemed to have ceased on the date on which the respondent last benefited from the prohibited conduct (e.g. the date on which it last received payment under the agreement). In this regard, the Tribunal initially ordered the parties to produce evidence of the date on which the last payment was received. The CAC deemed this appropriate and opted not to interfere with this order.

Condonation and Costs

The Tribunal was also called recently upon to decide two interlocutory applications, the first being a condonation application brought by the SACC in terms of section 54 of the Act for the late filing of its revised trial bundle (containing an additional 1221 pages), which was opposed by the respondents (Much Asphalt and Roadmac Surfing) and finally a counter application for costs against the SACC.

In terms of the condonation application, the SACC sought to revise the trial bundle on the basis that the revised trial bundle contained documents which were essential to its case (which were inadvertently omitted from its initial bundle) and had been re-organized in a manner that was less burdensome for all the parties involved. In support, the SACC argued, that the respondents wouldn’t be prejudiced by the late filing as the extra documents had already been discovered.

The Tribunal confirmed that the test for condonation must be ‘good cause shown’ by the SACC which should be assessed on case by case basis. The Tribunal held that the SACC had not shown good cause in this matter as it had ample time to furnish the respondents with the revised bundle and further found that filing the revised bundle at the 11th hour was unnecessarily prejudicial to the respondents.

south_africaIn terms of applications for costs, the respondents sought an order for wasted costs in relation to the postponement due to the late furnishing of the bundle as well as the cost of defending the application for condonation. Importantly it should be borne in mind that the Tribunal does not as a matter of course make cost orders against the SACC.  In this regard, the Constitutional Court has previously held that the Tribunal does not have the powers to make adverse cost orders against the SACC, even where the SACC has abused its powers. The general rule is that the parties pay their own costs. The Tribunal may only make cost orders against third parties and, accordingly, dismissed the respondent’s application for costs.

John Oxenham, director of Primerio says that these cases demonstrate the objectivity and impartiality of the adjudicative bodies which is an encouraging sign for respondents who do not believe that the case brought against them is procedural or substantively fair.

Fellow competition lawyer, Michael-James Currie says it is unfortunate that only the Competition Appeal Court makes adverse costs rulings and that the Competition Tribunal is precluded from doing so. Adverse costs ruling against the SACC should be reserved for matters in which there was clear negligence in the manner in which a case was investigated, pleaded or prosecuted. Such costs orders would, however, go a long way in ensuring that parties and in particular the prosecution agency, does not refer cases  to the adjudicative bodies (which have limited prospects of success) with no downside risk in losing the case.

Oxenham shares Currie‘s sentiment and suggests that adverse costs orders against the Commission will likely result in a more efficient enforcement regime as cases will be settled more expeditiously and respondents will be more reluctant to oppose the Competition Commission’s complaints with the knowledge that the SACC is confident in its case and prepared to accept the risk of an adverse costs order.

[The Editor wishes to thank Charl van der Merwe for his contribution to this article]

 

 

Africa: Increased growth rates, innovative banking sector, investment vs. development aid

The above topics were among those discussed at this year’s #AfricaFinanceForum, hosted by the Corporate Council on Africa.  The annual event featured high-level speakers, such as Rhoda Weeks-Brown, IMF General Counsel, who pointed to increased expected economic growth rates of 3.5% in 2019 (half a point higher than in 2018) and a faster per-capita income rise in Africa  than in rest of the world.  “Also up for debate was the dichotomy of investment vs. development assistance as the key driver of economic development on the continent,” notes Andreas Stargard, who attended on behalf of Primerio Ltd.

Ms. Weeks-Brown noted the rise of pan-African (vs. purely domestic) banks, observing the added benefit of improved competition, as well as the steady rise of fintech on the continent. The latter is especially important as the continent is still under-banked and relies heavily on the informal sector (less than 20% of sub-Saharan Africa’s population has a bank account).  Yet Africa leads the world in mobile money.  Mr. Stargard noted that “[s]he and many other speakers on subsequent panels agreed that there was a delicate balance to be struck by regulators and legislators of weighing innovation against the proper level of FinTech regulation and its integration benefits against anti-competitive effects thereof.  The IMF attorney was careful to point out that banking & financial integration must grow in conjunction with, and to support, economic and trade integration, as financial stability is a public good.  Africa requires strong sector regulators that must remain free from undue political or industry interference.”

Kalidou Gadio, a lawyer at Manatt, provided a sanguine assessment of the state of banking in Africa, noting that it is not up to par globally, but better than it was a decade ago, before and during the financial crisis. He also pointed to the net positive effect of banks facing increasing competition from newcomers to the space, such as Orange, M-Pesa and other telecom firms.

Dr. Maxwell Opoku-Afari, First Deputy Governor of the national Bank of Ghana observed the difficulties in setting proper licensing rules for fintech companies by central banks, and commented on the concentration risk in banking.

Phumzile Langeni, special investment envoy of the RSA, gave an objective speech on the investment opportunities in South Africa, including the President’s FDI incentive programme.  She answered difficult questions with aplomb — for example those about the country’s land reforms, infrastructure troubles, and unemployment — and spoke of the enormous growth potential and the “youth dividend” in South Africa and the continent in general.

The half-day event was rounded out by a panel focussed on central banks’ handling of the unique foreign-exchange problems faced by certain African nations, notably Mozambique and Angola, whose central banks had representatives on the panel, including the issues of ForEx reserve allocation and pegged rates.

GCR Matter of the Year 2019 awarded to AG deal with significant African dimension

Primerio’s Merger Team First to Obtain Clearances on Bayer’s $66 Billion Monsanto Acquisition

The Global Competition Review 2019 GCR Awards honoured the companies and their in-house and outside counsel responsible for shepherding the massive agriculture transaction through the multi-jurisdictional merger-control processes around the globe.  The Bayer/Monsanto (with divestitures to BASF) merger garnered overall “Matter of the Year” as well as “Merger Control Matter of the Year” in Europe.  The ceremony took place in Washington, D.C., during the annual ABA Spring Meeting antitrust conference.

The legal team advising St. Louis-based Monsanto on all African competition approvals was led by John Oxenham and Andreas Stargard, ably assisted by attorneys in 4 African jurisdictions — South Africa, COMESA, Tanzania, and Kenya.  The Primerio lawyers had the unique distinction of obtaining the first out of dozens of required clearances.

Monsanto Africa counsel, Stargard and Oxenham

Monsanto Africa counsel, Stargard and Oxenham, of Primerio

Competition enforcer terminates RPM investigation into Coca-Cola

COMESA’s second restrictive trade practices investigation ends inconclusively

Having now concluded two non-merger cases (the first was an exclusivity issue in football broadcasting and sponsorship agreements, see here), the COMESA Competition Commission’s (“CCC”) second investigation into restrictive vertical distribution practices engaged in by Coca-Cola and its distributors has culminated in somewhat of an indeterminate ending.

No fines were imposed, and the Coca-Cola parties agreed to eliminate the price-maintenance clause from their distribution contracts, as well as committing to implementing a generic compliance programme.

Says Andreas Stargard, a competition practitioner with Primerio Ltd., in an in-depth analysis of the short Decision (dated 6th December 2018, but only released recently):

I am very disappointed in this missed opportunity.  The Decision lacks intellectual rigour and avoids critical detail, to assist practitioners or business going forward in any meaningful way.

This investigation began in earnest well over a year ago, when the CCC opened formal Article 22 proceedings against the parties in January 2018.  In its disappointingly short 9-paragraph decision, lacking any degree of detailed reasoning, factual or legal analysis underlying its conclusions, the Commission has now determined the following:

  1. The relevant product market is the sale of non-alcoholic carbonated beverages.  I note that the wording of this definition would presumably include sparkling mineral water, which appears to be an outlier from the ‘soft drinks’ category that is actually at issue here (“Coke,” Fanta,” “Sprite,” etc.).
  2. A relevant geographic market was notably not defined at all (!).  The absence of this key dimension is unfortunate — it is not in accordance with established competition-law principles, as market power can only be measured in well-defined product and geographic markets.  While the decision mentions the countries in which the parties are active, it fails to identify whether each country was viewed as a relevant sub-market, or whether Coca-Cola’s market power (or dominance) was assessed across the entire COMESA region.  This appears to be a glaring oversight.
  3. The CCC found relatively low entry barriers, as well as apparently actual “new product” entry (NB: does “new product” imply products by a new or different competitor?).
  4. Yet, despite ‘non-prohibitive’ entry barriers, the Commission somehow views the mere fact that the respondent’s brands “continued to command a majority share of the relevant markets” (NB: where is the plural (‘markets’) coming from here? I thought there was only a single market for ‘non-alcoholic carbonated beverages’?) as leading to a finding of dominance.
  5. Crucially, the actual conduct complained-of (the vertical restraints, the alleged RPM, etc.) is barely identified and lacks any significant detail.  Paragraph 7 merely provides that there are “clauses which stipulate the profit margins to be enjoyed by the distributors, as well as the commission at different levels of the market. … [and] vertical restraints which constrain the distributors’ conduct in the relevant markets” (note the plural again).  This absence of key information — ‘what were these so-called vertical restraints’? how were distributors constrained in their conduct? — in an official ‘Decision’  by the enforcement agency wholly fails to assist businesses seeking antitrust guidance for operating within the legal boundaries in the COMESA region.
  6. Finally, the CCC’s overall conclusion is rather weak: the Decision states that the Commission merely “registered its concern that the stipulation of prices [I thought it was profit margins?] may have anti-competitive effects in the market [back to a single market?].”  To address these ‘potential’ ‘concerns’, Coca-Cola appears to have voluntarily committed to removing the offending contract language and instituting a (wholly undefined) “compliance program” that exclusively concerns Part III of COMESA’s regulations.

In sum, Coca-Cola seems to have got away easy here: no fine was imposed at all (which could have been as much as 10% of the parties’ COMESA revenues), a limited, voluntary training exercise was agreed, as was the removal of the RPM provision.

The CCC, on the other hand, missed a truly golden opportunity to draft a more well-reasoned decision.  Its 9-paragraph reasoning (which notably concludes with a finding of actual dominance nonetheless!) can literally fit on a single page… Remember: resale price maintenance is considered in many jurisdictions to be a “hard-core” offence, and is often deemed per se illegal.  In this regard, the Decision likewise fails to make any mention of the relevant legal standard under the COMESA Regulations for evaluating the RPM (and the other unidentified, vertical) conduct.

Andreas Stargard

Andreas Stargard

The flaws outlined above — from the lack of geographic market definition, missing market share data and other highly relevant details, zero explanation of why low entry barriers somehow did not preclude a finding of dominance, use of tautological and circuitous verbiage (“restraints which constrain“?) — preclude this “conduct” case,  notably already a rarity in the CCC’s portfolio, to be a lightning rod for the assent of the COMESA Competition Commission to become a respected competition enforcer.  This was a chance for the agency to be placed on the radar screen of international businesses, agencies and practitioners, to be seen together on the map with its respected peer antitrust enforcers such as the South African Competition Commission — yet, it was a chance unfortunately missed…

 

Moroccan telecom sector gets competition regulation

AAT has learned that the fledgling Moroccan antitrust regime, which has never quite come off the ground, is now being supplemented in a sector-specific regulation, namely the recently gazetted Droit [Law] no. 121.12.

The new law supplements the competition guidance specifically for telecommunications carriers, including high-speed internet and fibre-optic cable service providers, without repealing the main piece of antitrust legislation (Law no. 104.12 on the Freedom of Prices and Competition), whose key regulatory body — the Competition Council (Conseil de la Concurrence) — only recently became active in December 2018.  Law 121.12 now confers full investigative authority to the National Telecommunications Regulatory Agency (ANRT), which it enables to review complaints of anti-competitive behaviour, roaming agreements between competitors, and the like.

Andreas Stargard, a competition practitioner with Primerio, notes that “the law is primarily focussed on conduct issues and does not cater for any transactional / merger regulation, which remains the province of Law 104.12 and its crucial (and much debated) ‘40% domestic market share’ hurdle for notifications in the Kingdom.”  Stargard notes that the Competition Council’s web site is still — despite the agency’s recent personnel appointments — merely an “empty store-front of a site, without any substantive content.”

The new telecom-specific regulation is likely to have an impact on, and was influenced by, the limited state of play in the sector, which has been dominated for decades by state monopoly Maroc Telecom, whose would-be competitors such as Orange and Inwi have recently filed complaints against the dominant firm, mostly for refusals to deal, being denied access to indispensable networks, roaming agreements, and the like.

Says Stargard: “The new law will take such disputes out of the lengthy judicial process in court and allow the ANRT to investigate and render decisions on its own, including the power to fine up to 5% of a company’s turnover.

We will update AAT once further details become available.

KENYA: ENFORCEMENT ALERT

Restrictive Practices

The Competition Authority of Kenya (CAK) recently announced that it had entered into a settlement agreement with local beer producer Kenya Breweries Limited (KBL), a subsidiary of UK Diageo’s East African Breweries Ltd (EABL).

The settlement follows from an investigation by the CAK in terms of section 21 of the Competition Act (12 of 2010) wherein the CAK had found that KBL’s distribution agreements with its downstream distributors – which provides for inter alia, territorial exclusivity  – is anti-competitive and may lead to the lessening of intra-brand competition.

The settlement was reached in terms of section 38 of the Competition Act and requires that KBL establish an internal compliance policy and review and amend the problematic and restrictive clauses in its agreements with distributors.

Michael-James Currie, an African focused competition lawyer, says that the decision is particularly important for companies which use third parties to execute their distribution strategies as the majority of distribution agreements contain restrictions of some kind (often transported from international distribution agreements) which will need to be assessed against the standards of the Competition Act in Kenya as the CAK is actively focusing on these types of restrictive verticals arrangements.

Abuse of Dominance

Styles Industries (Darling Kenya)

Braids supplier, Styles Industries Ltd (Styles) has been found guilty by the CAK for abuse of dominance in contravention of Section 24 of the Competition Act.

The CAK launched an investigation into Styles on the basis of a complaint received by a competitor in the market, Solpia Kenya, claiming that Styles had abused its dominance by imposing unfair selling prices and conditions on suppliers who sell its products.

The CAK’s investigation found that Styles had abused its dominance by imposing unfair trading conditions on its downstream suppliers which it sought to enforce through threatening its downstream suppliers with account closure, removal of discounts and refusal to supply products.

The CAK is currently in negotiations with the parties and have indicated that its finding could result in Styles paying the complainant an amount in damages and/or a fine Sh10 million. In terms of Section 54(3) of the Competition Act, the relevant individuals within Styles could further face imprisonment for a period of up to 5 years.

Kaluworks

The CAK dismissed an abuse of dominance case against cookware manufacturer, Kaluworks Limited (Kaluworks).

The case emanated from a complaint by rival company, Sufuria World (Sufuria) in which it was alleged that Kaluworks had refused to sell to them certain aluminum circles which it required for purposes of manufacturing its aluminum cooking ports. This, Sufuria claimed, amounted to an abuse of dominance in terms of section 23 and 24 of the Competition Act.

The CAK, however, found that the conduct did not amount to abuse of dominance under the Competition Act as Sufuria had other options available to it in that it had the ability to replicate the technologies used by Kaluworks to produce the aluminum circles (as other manufacturers have done) or it could increase its order volumes in order to make it economically feasible for Kaluworks to supply it with the aluminum circles.

This finding was based on the representations made by Kaluworks that:

  • it primarily produces aluminum circles for in-house production for a variety of its own cookware products intended for local and export markets; and
  • it could only manufacture the aluminum circles to third parties where such third parties placed an order which met certain minimum quantities that would guarantee optimal scale of production

In supporting its findings, the CAK stated that in assessing the conduct of a dominant firm and whether it amounts to a ‘refusal to deal’, “is necessary to prove indispensability of the facility to the operation of the complainant or other third parties as arbitrary intervention may hurt innovation.

Market Inquiries

Transport Inquiry

The CAK has recently announced that it has initiated a ‘regional study’ in the Shipping, Trucking and Haulage industry in Kenya, Uganda, Rwanda and Burundi.

According to the announcement, the objective of the inquiry is to identify and remedy features of the market and trade practices which are anti-competitive and which impedes the national and intra-regional trade which in terms slows the potential growth of the manufacturing sector in Kenya.

Leasing Sector

The CAK has further announced a market study into the leasing sector which it will be conducting in conjunction with the Financial Sector Deepening (FSD) Kenya.

The objective of the market study is to assess the level of competition in the sector and to identify areas of concern in order to enhance competition in the market by facilitating SME entrants into the market.

John Oxenham, director at African antitrust advisory firm Primerio, says that market inquiries can be used very effectively, however, they are resource intensive and in order to achieve there objectives must be concluded expeditiously. The CAK should be cognizant of the challenges and experiences of the South African Competition Commission (SACC) where the market inquiries are not being concluded timeously.

[The editor wishes to thank Charl van der Merwe for his contribution to this update]