ECOWAS creates functional antitrust commission

While the ECOWAS competition regime is not new in and of itself (it was adopted in 2008), the actual operationalization of the ECOWAS Regional Competition Authority (ERCA) is — its inaugural ceremony in took place this past Tuesday in The Gambia, 11 years after its technical launch (although it was established jointly with the adoption of the ECOWAS competition legislation, it remained non-operational for over a decade).  Its mission is to enforce the multi-national body’s Regional Competition Policy Framework (RCPF).

ERCA’s efforts will be supported by the twin launch of the ECOWAS technical committee meeting of national  trade and competition representatives to assist in implementing the RCP, including both its competition/antitrust as well as consumer protection mandates.

ERCA is a specialized, autonomous quasi-judicial body designed to help promote regional economic growth and competitiveness in the ECOWAS common market.

Andreas Stargard, a competition law practitioner with a focus on African antitrust issues, noted that the ECOWAS rules, while not enforced in practice until now, will reflect more of a European approach to competition regulation, as “they include provisions to evaluate and render invalid certain types of governmental support for domestic champion companies and industries, akin to the EU model of ‘state aid’ rules, which do not always form part of antitrust regimes globally.  This makes sense, in our view, in the African context, however, as most domestic economies on the continent have long been subject to state-owned monopoly enterprises and so-called national champions — one need not look further than the various large African state-owned airlines, for example.”

He concluded that two key issues remain to be seen, once ERCA launches its first investigations and brings enforcement actions: “First, with the increasing number of regional enforcers, how will jurisdictional overlaps be resolved, both regional/national, as well as regional/regional, conflict?  Many ECOWAS members are also part of other African multi-national organizations that have some form of competition or consumer protection regulations as part of their mandate, such as the west African monetary union.  Second, what will the be the degree — if any — of ‘public interest’ considerations that may be in play for the 15-member state body’s antitrust enforcement, perhaps copying many of its African sister commissions’ approach…”

Time will tell…

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ACF in the spotlight: African Competition Forum promotes policy enhancements

Putting African antitrust enforcement in the spotlight: the work of the African Competition Forum

AAT is often right and sometimes wrong — and we acknowledge the latter whenever that happens.  Today is one such occasion, as we have been entirely remiss in our coverage of the African Competition Forum (“ACF”).

The ACF (FAQ here) is a 3+ year-old organisation comprising several anglophone and francophone countries with and without competition enforcement agencies across the African continent (with apparently ongoing efforts to recruit Portuguese-language entities as well, e.g., Mozambique, Angola).  It undertakes various research, capacity-building, and advocacy/integration projects, all related to competition policy and enforcement.

The ACF notably spans across the entire continent, having a self-reported 41 countries as members, and its membership scope is larger than that of regional bodies, such as COMESA or SADC.

We look forward to providing more in-depth coverage of the ACF in the future, including interviews with the group’s senior leaders.  For the time being, in the organisation’s own words, its history and mission are as follows:

The African Competition Forum (ACF) was formally launched in March 2011 as a network of competition authorities in African countries. The network is comprised of 41 out of 54 African countries. It was tasked with enhancing the adoption of competition laws, building the capacity of new authorities and assisting in advocating for the implementation of competition reforms that benefit African economies. In countries where there is no authority, the network would assist in paving the way for the development of a competition law. An Interim Steering Group (ISG) was initially tasked with overseeing the setting up of the ACF.

A major task the ISG and then SC had to perform, foremost, was the development of a needs assessment which would be used to develop the ACF’s plan of action and would also help prioritise the key issues for which countries who are members of the network would require assistance. In coming up with the needs assessment a broad questionnaire was administered and sent to the four regional competition authorities of Southern African Development Community (SADC), West African Economic Monetary Union (WAEMU), Common Market for East and Southern Africa (COMESA) and Economic Community of West African States (ECOWAS) and to forty-one countries, twenty-seven of which responded.

Overall, the key elements that were identified as priorities for African authorities within the questionnaire fell into three main categories:

1. Capacity building on strategic planning and management, practical aspects of competition law enforcement such as investigative and litigation skills and techniques; and foundational training on the basics of competition law and economics;
2. Technical assistance in drafting and revising competition policy, laws and regulations and in designing agency procedures, guidelines, and operational manuals; and,
3. Support with advocacy and engaging other relevant stakeholders.

The questionnaire incorporated the above elements in five sections, namely:

1. The status of competition policy and law in the responding country
2. The responsible agency’s powers, jurisdiction and functions (if one exists)
3. The resources and workload of the competition agency
4. The capacity building and technical support required by the responding country
5. The nature of relationships with regional and multinational and other competition bodies.

Respondents’ contact details were drawn from the International Development Research Centre (IDRC) databases on competition authorities worldwide; information supplied by Department for International Development (DFID); SADC; United Nations Conference on Trade and Development (UNCTAD); personal contact between the ACF Co-ordinating Team; and, regional and national authorities. A meeting about the needs assessment questionnaire with African countries attending an UNCTAD conference in Geneva in November 2010 also served to provide contacts details of key competition personnel.

The ACF was recently spotlighted in an article in the Tanzanian Daily News, which reported on the ACF’s workshop entitled “Agency Effectiveness.”  The article is worth a read, we believe, as it explains the history of the ACF’s founding as well as some background to African economies’ slower and later adoption of competition regulation, due to previously centrally-planned economics and broadly government-sanctioned monopolies operating lawfully:

Dr Kigoda noted that African economies have co-existed with a number of well-known cartels and anti-competitive conducts such as price fixing, bid-ridding, restrictions of output, allocation of markets and other unwarranted agreements.

Due to that African competition agencies must be vigilant to investigate and prosecute all these in order to ease the burden on their taxpayers.

Deputy Chairman of Fair Competition Commission (FCC) Col. (Rtd) Abihudi Nalingigwa said competition authorities seek to ensure that there are no anti-competitive agreements, abuse of market power and unjustified monopolistic market concentrations are put on check.

“We thought it would be worthwhile this time around concentrating on ‘Agency Effectiveness” because we believed the topic falls directly within the expectations of our stakeholders including the consumer, business community and the government who should see value for financing agency operations.

This can best be realized through translation into more effective competition and regulatory authorities which are capable of quick dispensation of justice that provide relief to their lives. On other hand, investor-confidence through better market regulation will increase investment inflow as investors will be assured that no anti-competitive will go unchecked or unaddressed.

Many African countries introduced their competition law in the mid 1990s prompted by a process of privatization and liberalization of their respective economies that started in late 1980s….