In addition to the massive changes occurring in the world of COMESA and its newly-styled COMESA Competition and Consumer Commission, on which we reported here and here, the East African Community Competition Authority (“EACCA”) and the (then) COMESA Competition Commission (“CCC”) had formalised their cooperation on regional competition and consumer protection through a Memorandum of Understanding (“MoU”) back in June 2025.
We wish to return briefly to this development, as it marked a significant effort by the two (potentially competing and decidedly geographically overlapping) regional bodies to address regulatory gaps that emerge where commercial activity extends across multiple regions, but regulatory authority remains confined by jurisdictional limits.
In essence, the MoU aims to strengthen collaboration between the two regional bodies on competition and consumer protection enforcement and creates a practical framework for coordinating cross-border cases and joint investigations into unfair market practices. This coordination will enable effective information sharing in the context of joint investigations, assist in carrying out market inquiries and studies, support technical assistance and capacity-building initiatives, while also helping to avoid duplication in enforcement efforts.
Recognising the need for streamlined coordination, the EACCA and CCC have committed to implementing annual action plans and to reviewing relevant regulations and guidelines to ensure their effectiveness and alignment across the two regional bodies.
The MoU between the EACCA and the CCC represents an important institutional step toward more coherent regional competition and consumer protection enforcement in Africa. While enhanced cooperation, information-sharing and coordinated investigations are necessary to address cross-border conduct, the practical impact of the MoU will depend on effective implementation and sufficient resourcing of both authorities. Ultimately, the success of this cooperation framework will be measured not by its formal commitments, but by whether it delivers predictable, efficient enforcement outcomes that strengthen market integration while safeguarding competition and consumer welfare across the region.
On 13 January 2026, the newly renamed COMESA Competition and Consumer Commission (“CCCC”) issued its Practice Note 1 of 2026 (“Practice Note”), which is intended to provide legal clarification for businesses and legal communities regarding the newly approved COMESA Competition and Consumer Protection Regulations of 2025 (“2025 Regulations”).
By addressing common points of confusion, such as clarification on the commencement of the 2025 Regulations, merger thresholds in respect of transactions in digital markets, and the CCCC’s ability to grant derogations from its suspensory regime, the CCCC aims to ensure a uniform interpretation and a smooth transition to the 2025 Regulations and new suspensory merger regime.
The effective date and “in-flight” transactions
One of the main objectives of the practice note was to correct a previous administrative error regarding the implementation date of the new regime. The CCCC clarified that the effective date of the 2025 Regulations is 4 December 2025, the same date the 2025 Regulations were approved by the COMESA Council of Ministers.
For merger transactions signed shortly before the enforcement of the 2025 Regulations, but were not yet notified or closed, the CCCC has set a clear boundary stating that any matter not under assessment by the CCCC by 4December 2025 will be governed by the 2025 Regulations. Contrarily, any matters instituted before 4 December 2025 and currently under the CCCC’s review will continue to be managed under the repealed 2004 Regulations to ensure procedural continuity.
Strict adherence to the new suspensory regime
The Practice Note emphasises and enforces the CCCC’s new suspensory regime, requiring notifiable transactions to be approved by the CCCC before they may be implemented.
While the 2025 Regulations allow for derogations where parties may apply to implement transactions prior to obtaining approval, the CCCC emphasises that such derogations will be granted sparingly and only in exceptional circumstances.
The CCCC, however, clarifies that while there is no longer a deadline by which a transaction must be notified to the CCCC, there are no derogations afforded to the notification requirements themselves. This ensures that all notifiable mergers must be notified prior to implementation.
Transactions in digital markets
To ensure the CCCC keeps pace with the rapid development of antitrust enforcement in digital markets, the 2025 Regulations have introduced a specific digital-transaction value threshold in an attempt to regulate big tech.
Under the 2025 Regulations, a transaction involved in digital markets is required to be notified should:
the worldwide value of the transaction reaches over COM$250 million (US$250 million); and
at least one party operates in two or more Member States.
Notification requirements in respect of Joint Ventures
When considering the notification requirements and thresholds in respect of a joint venture (“JV”), the CCCC has emphasised that the 2025 Regulations will only apply to JVs that have the intention of performing on a lasting basis all the functions of an autonomous economic entity (commonly referred to as full-function JVs).
A keynote emphasised by the Practice Note is the definition of a “lasting basis”, emphasising that a JV is not subject to notification if the parties to the JV do not have the intention of operating within the COMESA region within the next three years or, once established, operating for a period of three years or more.
Extension of merger assessments to non-competition factors
Although the CCCC considers public interest factors under the 2025 Regulations, the Practice Note has clarified that the competition concerns of a transaction carry the most weight in its investigation.
The CCCC priorities ensure that in the future, it is unlikely for the Commission to reject a co-competitive merger based on negative public interest. This is just as a merger that may significantly lessen a competitive market will not be more heavily considered based on the benefits of the public interest.
John Oxenham, director at Primerio International, notes that “ultimately, while the effects of the 2025 Regulations and Practice Note remain to be seen in practice, the Practice Note acts as a helpful road map for navigating the new aspects of the 2025 Regulations.” His colleague Andreas Stargard observes that the latest Practice Note is “not substantive in any significant way, but truly sticks to the theme of mere ‘clarification’ of the existing new 2025 Regs. Deadlines and time calculations are explained in more detail than in the statute — but not altered — and value thresholds for digital transactions are clarified (again, without substantively modifying the text as found in the new law). They are basic practice pointers, no more and no less.”
On 4 December 2025, the COMESA Council of Ministers adopted the COMESA Competition and Consumer Protection Regulations, 2025 (the “2025 Regulations”), marking a significant overhaul of its regional regime since its inception in 2004. The 2025 Regulations, which entered into force immediately, officially repeal and replace the previous COMESA Competition Regulations (the “2004 Regulations”).
The 2025 Regulations have introduced a number of substantive developments and refinements to the COMESA competition regime. Most significantly, the 2025 Regulations have have introduced a suspensory merger control regime, expand a number of enforcement powers, formalise a leniency regime in respect of hardcore carte conduct and significantly strengthen oversight of digital markets.
The “Quad-C”: COMESA Competition Commission has also been rechristened as the COMESA Competition and Consumer Commission (“CCCC”), reflecting its enhanced consumer protection mandate.
“The 2025 Regulations have not come as a surprise,” according to competition-law practitioner Michael-James Currie. As AAT has previously reported, the COMESA Competition Commission had on 24 January 2024 issued a press release requesting comments to its proposed Draft Regulations (as amended in November 2023). “As such, the 2025 Regulations have been contemplated, revised and tightened alongside a number of stakeholders and comments over a period of at least two years, including our and our clients’ input,” says Currie. The 2025 Regulations have also been coupled with an updated set of implementing Rules. Finally, the CCCC recently introduced a Practice Note regarding the new merger control regime.
We report comprehensively on these significant developments here, as well as in a series of future COMESA updates. For an academic review of the “coming of age” of the COMESA enforcement regime, please see Dr. Liat Davis and Andreas Stargard‘s separate Concurrences article, “COMESA: Regional Rapprochement Refined“, tracing the trajectory of the Common Market for Eastern and Southern Africa (COMESA) competition regime—the first multi-national antitrust enforcement system in Africa, and the second to be created globally after the European Union, in what has since become a growing field of regional enforcement regimes.
COMESA’s move to a suspensory regime & expanded merger assessment powers
“One of the most significant changes is the move to a suspensory merger control regime. Under the 2004 Regulations, merging parties could implement transactions notified in COMESA prior to obtaining clearance, provided such transactions were notified within 30 days of the ‘decision to merge’,” according to Primerio partner John Oxenham. “This is no longer the case: notifiable mergers must now be approved either unconditionally or conditionally by the CCCC prior to implementation.”
The 2025 Regulations have, however, introduced a derogation in respect of the suspensory rule, which provide a level of flexibility on the suspensory rules for parties involved in public takeovers, for example.
The Regulations also revise the definition of a ‘merger’ – introducing further clarifications on ‘controlling interest’ and explicitly capturing full-function joint venture arrangements – as well as introducing updated financial thresholds.
Dr. Mwemba, CEO of the CCCC
Transactions which meet the ‘merger’ definition will now be notifiable where the combined turnover or asset value of the parties in the Common Market equals or exceeds COM$60 million (US$60 million), and at least two parties each meet the COM$ (US$10 million) threshold. For certain digital market transactions, a new transaction-value threshold of COM$250 million (US$250 million) has been introduced.
In addition, the maximum merger filing fee cap has now been increased from COM$200,000 to COM$300,000.
The CCCC’s merger assessment powers have been broadened beyond the traditional lessening of competition (“SLC”) test. Borrowing from a number of African competition authorities’ precedent, the CCCC may now also consider specific public interest factors in merger control, including employment, the competitiveness of small and medium enterprises, environmental sustainability and effects on innovation in the Common Market.
Jurisdictional reach & Strengthening the COMESA one-stop shop
The 2025 Regulations reinforce COMESA’s ‘one-stop shop’ principle. COMESA Member States are now under stronger obligations not to require parallel merger notifications where a transaction falls within the jurisdiction of the CCCC. This provides greater legal certainty for merging parties operating across multiple COMESA Member States. That said, “some obstacles to a full one-stop-shop do remain,” according to Andreas Stargard. “Dr. Willard Mwemba, the CCCC’s CEO, noted at last year’s fall press conference that, in light of the newly-established EAC competition regime and its somewhat overlapping merger notification requirements, the Commission acknowledges the concern that dual notification obligations may occur in the foreseeable future due to the parallel regional body.”
For completeness, the COMESA Common Market comprises 21 Member States – Burundi, Comoros, the Democratic Republic of Congo, Djibouti, Egypt, Eritrea, Eswatini, Ethiopia, Kenya, Libya, Madagascar, Malawi, Mauritius, Rwanda, Seychelles, Somalia, Sudan, Tunisia, Uganda, Zambia, and Zimbabwe.
Anti-competitive Practices
New standards and risks in respect of per se prohibitions
The 2025 Regulations overhaul the CCCC’s approach to restrictive practices. While the 2004 Regulations’ standard was related to having an ‘appreciable effect’, the general prohibition now applies to conduct that has the object or effect of resulting in an SLC in the Common Market.
The list of per se prohibitions has also been expanded. Certain vertical restraints – including absolute territorial restrictions, restrictions on passive sales and minimum resale price maintenance – are now prohibited outright and cannot be justified by efficiency defences.
Formal introduction of a leniency regime
One of the major developments flowing from the 2025 Regulations is the introduction of a formal leniency regime for hardcore cartel conduct occurring within the Common Market.
Importantly, any leniency decisions taken by the CCCC will officially bind individual COMESA Member States, meaning that leniency applicants will not be subjected to parallel enforcement at a national level for the same conduct reported. This significantly enhances legal certainty and aligns COMESA with international best practice.
Higher penalties and greater enforcement
Administrative penalties have been substantially increased by the 2025 Regulations. Under the 2004 Regulations, fines were capped at COM$200,000, the CCCC may now impose fines of up to 10% of a firm’s turnover in the COMESA Common Market. This change, coupled with the expanded per se prohibitions, signals a clear intention of the CCCC to strengthen enforcement and deterrence of anti-competitive practices.
Abuse of dominance and economic dependence
The definition of dominance has been revised, with a stronger focus on economic independence from competitors, customers and suppliers. While no bright-line market share thresholds are introduced by the 2025 Regulations, the broader definition may give rise to increased litigation and uncertainty.
The 2025 Regulations also introduce a new prohibition on the abuse of economic dependence which targets situations where a firm exploits a superior bargaining position over a counterparty that lacks reasonable alternatives, even where the firm is not dominant.
Increased focus on digital markets and gatekeepers
In line with international trends and standards, the 2025 Regulations introduce the concept of ‘gatekeepers’ in digital markets. Gatekeepers are subject to a wide range of behavioural prohibitions, including bans on self-preferencing, data leveraging, anti-steering provisions and discriminatory treatment of small and medium enterprises.
While the criteria for identifying ‘gatekeepers’ remain vague, the scope of the obligations is broad and signals a far more interventionist approach to digital markets in the COMESA Common Market than anticipated previously.
Enhanced market inquiry powers
The CCCC’s investigative powers have been broadened to include the ability to conduct market inquiries and allow the CCCC to compel information and take action, including launching official investigations, engaging in advocacy or negotiating potential remedies.
Importantly, the CCCC cannot unilaterally impose remedies on parties following a market inquiry alone.
Conclusion
The 2025 Regulations represent a major evolution in the COMESA competition framework. As the authors conclude in their Concurrences article cited above, “[t]hese reforms expand the CCC’s toolkit—introducing suspensory merger control, cartel leniency, market inquiries, and digital-market provisions—while also placing public interest and consumer rights more explicitly into the regional framework. They are ambitious, progressive, and aligned with global trends, yet they also raise difficult questions of clarity, implementation, and institutional capacity.”
In AAT’s view, provided adequate staffing and resources exist, the CCCC has now become one of the best-equipped regional competition regulators on the African continent.
Much will depend on how the 2025 Regulations are implemented in practice. For now, companies operating in the COMESA region should consider the 2025 Regulations in line with their compliance strategies and, if in doubt, seek professional legal advice to tailor their business practices and corporate strategies accordingly.
Michael-James Currie, director at Primerio, hosted an insightful webinar alongside Primerio’s in-country Partners, Mweshi Bunda Mutana for Zambia, Hyacinthe Fansi for Cameroon, and Cris Mwebesa for Tanzania. The conversation provided an extensive look into recent developments in merger control across Africa’s principle regional competition authorities and can be accessed here.
This deep dive showed a significant shift towards a more prominent enforcement, lower notification thresholds and stronger coordination between national and supranational regulators. Africa’s merger landscape has vastly changed over the past four to five years which has resulted in more complexity in multi-jurisdictional merger control, increased detection risk for non-notified transactions and a widened the set of jurisdictions that must now be considered for compliance.
This webinar session contained a slightly different focus as the inspiration for the session was to feature a more pragmatic approach that stems from how merger control has changed significantly in Africa over the past few years. There has been a very clear shift in merger regulation and an increase of agencies that have adopted merger control or antitrust laws more generally. The rules and regulations surrounding merger control have become more sophisticated, and these developments are important for the agencies that make use of merger control, antitrust compliance and enforcement. As a result, it was highlighted that the CEMAC merger control has evolved from a basic framework to a more formalised and substantive merger control regime. This is evident in how the system now imposes mandatory filings when both turnover and market share thresholds are met, even for foreign deals without substantial local operations. The system does remain very paperwork-heavy, and a growing concern is the high filing fee cap that is c. USD 70 million.
COMESA was described as Africa’s most advanced and prominent regional regulator in respect of merger control and is now preparing to make substantial amendments to its merger regulators which are expected to take effect in the beginning of 2026. These changes will include mandatory notification for greenfield joint ventures, provisions on digital markets, provisions relating to public interest considerations and questions regarding how regional and national priorities will be remedied.
The East African Community Competition Authority has now operationalised its merger control system, effective as of 1 November 2025. This regime has exclusive jurisdiction over mergers with cross-border effects involving at least two partner states, stated by Cris Mwebesa, and meeting a certain asset or turnover threshold of USD 35 million. The system includes a 120-day review period and filing fees, however several Member States have not domesticated this regional law which means that filings at a national level in parallel to the regional level should be expected. This means that there will be overlaps with COMESA and there is a lack of clarity on how the public’s interest will be prioritised which creates further confusion and uncertainty. Confusion can arise when, for example, Zanzibar’s separate competition authority adds an additional filing requirement for merger control.
The ECOWAS Competition Authority has been operational for around one year and has demonstrated steady progress in handling non-contentious mergers. This authority considers transactions at certain turnover levels and individual thresholds which renders the regime broad in scope. The jurisdictional thresholds for an ECOWAS filing remain low, which may result in challenges around when a dual filing is appropriate and delaying decision making by the respective authorities.
Evidently, across many jurisdictions there are varying levels of institutional maturity that influence regional merger control. This is seen in how Zambia has strengthened its relationship with COMESA, following recent domestic legislative amendments, whilst Tanzania’s national authority co-exists with emerging EAC obligations, creating an emphasised need for coordination. These national-regional intersections will continue to influence filing strategies, especially in sectors where public interest or national sensitivities are emphasised.
These insightful discussions highlighted that merging parties now face a more complex and differentiated compliance across Africa. Although procedural clarity continues to develop, the direction of development is clear in that African merger regimes are growing more enlightened, more interrelated and more aligned with global standards.
Africa’s Merger Control Regulation: A Look At Recent Developments
Megan Armstrong and Jenna Carrazedo
Michael-James Currie, director at Primerio, hosted an insightful webinar alongside Primerio’s in-country Partners, Mweshi Bunda Mutana for Zambia, Hyacinthe Fansi for Cameroon, and Cris Mwebesa for Tanzania. The conversation provided an extensive look into recent developments in merger control across Africa’s principle regional competition authorities and can be accessed here.
This deep dive showed a significant shift towards a more prominent enforcement, lower notification thresholds and stronger coordination between national and supranational regulators. Africa’s merger landscape has vastly changed over the past four to five years which has resulted in more complexity in multi-jurisdictional merger control, increased detection risk for non-notified transactions and a widened the set of jurisdictions that must now be considered for compliance.
This webinar session contained a slightly different focus as the inspiration for the session was to feature a more pragmatic approach that stems from how merger control has changed significantly in Africa over the past few years. There has been a very clear shift in merger regulation and an increase of agencies that have adopted merger control or antitrust laws more generally. The rules and regulations surrounding merger control have become more sophisticated, and these developments are important for the agencies that make use of merger control, antitrust compliance and enforcement. As a result, it was highlighted that the CEMAC merger control has evolved from a basic framework to a more formalised and substantive merger control regime. This is evident in how the system now imposes mandatory filings when both turnover and market share thresholds are met, even for foreign deals without substantial local operations. The system does remain very paperwork-heavy, and a growing concern is the high filing fee cap that is c. USD 70 million.
COMESA was described as Africa’s most advanced and prominent regional regulator in respect of merger control and is now preparing to make substantial amendments to its merger regulators which are expected to take effect in the beginning of 2026. These changes will include mandatory notification for greenfield joint ventures, provisions on digital markets, provisions relating to public interest considerations and questions regarding how regional and national priorities will be remedied.
The East African Community Competition Authority has now operationalised its merger control system, effective as of 1 November 2025. This regime has exclusive jurisdiction over mergers with cross-border effects involving at least two partner states, stated by Cris Mwebesa, and meeting a certain asset or turnover threshold of USD 35 million. The system includes a 120-day review period and filing fees, however several Member States have not domesticated this regional law which means that filings at a national level in parallel to the regional level should be expected. This means that there will be overlaps with COMESA and there is a lack of clarity on how the public’s interest will be prioritised which creates further confusion and uncertainty. Confusion can arise when, for example, Zanzibar’s separate competition authority adds an additional filing requirement for merger control.
The ECOWAS Competition Authority has been operational for around one year and has demonstrated steady progress in handling non-contentious mergers. This authority considers transactions at certain turnover levels and individual thresholds which renders the regime broad in scope. The jurisdictional thresholds for an ECOWAS filing remain low, which may result in challenges around when a dual filing is appropriate and delaying decision making by the respective authorities.
Evidently, across many jurisdictions there are varying levels of institutional maturity that influence regional merger control. This is seen in how Zambia has strengthened its relationship with COMESA, following recent domestic legislative amendments, whilst Tanzania’s national authority co-exists with emerging EAC obligations, creating an emphasised need for coordination. These national-regional intersections will continue to influence filing strategies, especially in sectors where public interest or national sensitivities are emphasised.
These insightful discussions highlighted that merging parties now face a more complex and differentiated compliance across Africa. Although procedural clarity continues to develop, the direction of development is clear in that African merger regimes are growing more enlightened, more interrelated and more aligned with global standards.
The COMESA Competition Commission (“CCC”), released its 2024 Annual Report on 23 July 2025, outlining a narrative of both increased institutional maturity and a growing assertiveness in market regulation. This, against a backdrop of economic turbulence such as regional inflationary pressures, tightened global credit conditions and slowing GDP growth in Member States, the CCC pressed forward, making notable strides in their enforcement, policy advocacy and institutional development.
M&A Activity and a shift in sectoral dynamics
Dr. Willard Mwemba, COMESA Competition Commission Chief Executive
A notable metric from the year under review is the number of merger notifications, the CCC recorded receiving 56 transactions, a 47.4% increase from the previous year (2023). This spike may, in part, be a response to post-COVID19 economic restructurings and macroeconomic volatility prompting consolidation across various sectors. It is also likely that it points to a growing awareness among firms of their obligations to notify under the COMESA Competition Regulations, alongside the CCC’s increasing presence in regulatory enforcement within the region.
A large portion of these notified mergers in 2024 came from the banking and financial services sector, at 7 notified mergers, followed by energy and petroleum with 6 notified mergers, and ICT and agricultural sectors having 4 notified mergers each. Notably, each of these sectors can be linked to economic resilience and infrastructure development across the Member States. Countries like Kenya and Zambia showed the highest levels of enforcement with respect to mergers, affirming their roles as key economic nodes within the COMESA region.
The CCC continued to apply the subsidiarity principle in their merger assessments, deferring to national authorities where appropriate. With this, there were still 43 determinations finalised within stipulated time frames, unconditionally cleared with no mergers being blocked or subject to conditions. This contrasts with 2023, where four such interventions occurred. This unblemished record may suggest procedural compliance and benign effects, it does raise the question of whether these competitive harms are being sufficiently interrogated or whether transactions are being proactively structured to avoid scrutiny.
Restrictive Practices: Building a Hard Enforcement Reputation
Here, the CCC pursued 12 investigations in 2024, increased from 9 in 2023. These investigations touched sectors ranging from beverages, to wholesale and retail, ICT, pharmaceuticals and transport and logistics. The CCC’s increasing use of ex officio powers, particularly in the transport and non-alcoholic beverages sectors is noteworthy, reflecting a strategic pivot from a reactive enforcement regime to a more intelligence-led and proactive regime.
The CCC bolsters this enforcement strategy with an acknowledgement that behavioural change often requires more than deterrence. It maintains research and advocacy at its core focus for market engagements. The CCC’s involvement in collaboration with the African Market Observatory project in the food and agricultural sector highlights the market and policy failures that arise in these areas. This research has spurred dialogue at both national and international levels, including involvement from the OECD and International Competition Network.
Reform and Capacity Building
The CCC has initiated a long-overdue review of its legal framework, seeking to modernise its 2004 Regulations and Rules. These revised instruments, once adopted, are expected to cover emerging regulatory concerns, which includes climate change, and digital markets. These are areas where the intersection between competition and broader public policy goals are becoming more pronounced.
The CCC has scaled up technical assistance across the region, including providing support to legal reform processes in jurisdictions such as Eswatini, Egypt and Djibouti. The CCC also presented training for competition authority officials in Member States such as Comoros, Zimbabwe and Zambia. These capacity building efforts are critical for the CCC to realise its vision of a harmonised and integrated regional competition regime.
The Year Ahead: A Cartel Crackdown and Consumer-Centric Focus
Looking ahead to 2025, the CCC has signalled a decisive focus on cartel enforcement. There has been a growing recognition that undetected and entrenched cartel operations remain one of the most damaging forms of anti-competitive conduct in the Common Market, resulting in raised priced, limitations to innovation and a stifling of regional integration. The CCC intends to ramp up their detection tools, build cross-border enforcement partnerships, and enhance leniency and whistleblower frameworks. This is a complex undertaking, but does provide the potential to yield transformative results should it be executed effectively.
Alongside this, the CCC intends to intensify its efforts on the consumer protection front, particularly in those sectors that have been flagged through its market intelligence efforts. The digital economy is one such priority sector, the CCC has received anecdotal evidence of exploitative practices in this sector and is positioned to clarify its understanding of the competitive dynamics at play in this sector. Similarly, product safety in the fast-moving consumer goods sector is expected to receive closer scrutiny.
Conclusion
If 2024 was the year of consolidation, 2025 promises to be the year of forward momentum. The CCC has shifted its weight towards deeper enforcement, increased research and the implementation of a regulatory framework that has the ability to meet and address modern market realities. From cartel detection to digital market fairness and food sector resilience, the CCC has an ambitious agenda for the year ahead.
As regional integration efforts gather pace under the AfCFTA, the CCC’s role as a guardian of market fairness and consumer protection within Member States will only become more central. With this groundwork having been laid, it is time for the harder, but more rewarding task: “building markets that work for everyone”.
Malawi’s new Competition and Fair Trading Act came into effect in 2024 (“2024 Act”).[1] While this lags behind one of the best-known competition authorities in Malawi, namely COMESA’s Competition and Consumer Protection Commission (“CCCC”) headquartered in Lilongwe to the tune of over a decade, the domestic antitrust regime is being reinforced, as this legislative update shows. And with this latest edition, it is firmly in place when it comes to those national merger-control matters that escape the one-stop-shop of the CCCC. The Competition and Fair Trading Commission of Malawi (“CFTC”) stated that the goal of the 2024 Act is to:
supplement certain areas that the previous Act lacked; and
improving effective enforcement.
Several notable changes were included in the 2024 Act, particularly in respect of the introduction of a suspensory merger control regime.
The 2024 Act also introduces a public interest test that the CFTC must apply when evaluating whether a proposed merger can or cannot be justified. This public interest test includes several factors including the effect of the potential transaction on:
specific industrial sectors or regions;
employment levels; and
the saving of a failing firm.
The CFTC has also been granted the power to impose administrative orders on parties who violate the 2024 Act, which include administrative penalties of up to 10% of a firm’s annual turnover or 5% of an individual’s income.
The CFTC can also levy orders to redress wrongdoing, such as instructing refunds, exchange or return of defective products, and termination of unfair and exploitative contracts.
These increased powers come after the High Court of Malawi Civil Division ruled in the 2023 case of CFTC v Airtel Malawi that the CFTC lacked the authority to impose fines under the 1998 Act.[2]
To supplement the 2024 Act, the Minister recently published a Government Notice[3] that provides for the financial thresholds for mandatory merger notifications as well as an overview of other fees payable to the CFTC.
THE FINANCIAL THRESHOLDS FOR MANDATORY MERGER NOTIFICATIONS
Any transaction exceeding the following financial threshold will require prior approval from the CFTC before implementing:
The combined annual turnover or combined value of assets whichever is higher, in, into, or from Malawi, equals to or exceeds MWK 10 billion (approximately USD 5 800 000); or
The annual turnover of a target undertaking, in, into, or from Malawi, equals to or exceeds MWK 5 billion (approximately USD 3 000 000).
FEES PAYABLE TO CFTC FOR COMPETITION FILINGS
The Government Notice sets the merger application fee payable at 0.5% of the combined annual turnover or total assets whichever is higher of the merging parties derived from Malawi. It is important to note that the Government Notice does not specify a maximum fee payable.
OTHER FEES PAYABLE TO THE CFTC
Application for an Authorization of an Agreement at MWK 10 million (approximately USD 5 800) an agreement, a class of agreements under section 24(1) of the 2024 Act or an agreement which, any person who proposes to enter into, or carry out an agreement which, in that person’s opinion, is an agreement affected or prohibited by the 2024 Act. Importantly, an ‘agreement’ is defined in the 2024 Act, being: “any agreement, arrangement or understanding, whether oral or in writing, or whether or not the agreement is legally enforceable or is intended to be legally enforceable”
Application for Negative Clearance at MWK 10 million (approximately USD 5 749,49) for any party to a merger transaction seeking clarification as to whether the proposed merger requires the formal approval of the CFTC or whose proposed merger is subject to review by the CFTC.
Training on Competition & Consumer Protection at MWK 5 million per training package (approximately USD 3 000);
This supplementation by the Government Notice to the 2024 Act is of utmost importance for businesses and competition law practitioners operating within the jurisdiction of Malawi to ensure smooth transactions and to avoid statutory sanctions.
[1]Competition and Fair Trading Act No. 20 of 2024
[2] Competition and Fair Trading Commission v Airtel Malawi Ltd. & Anor. (MSCA Civil Appeal 23 of 2014) [2018] MWSC 3
Decision of the appeals board on the appeal lodged by Confederation Africaine de Football and beIN Media Group LLC
By Olivia Sousa Höll
Introduction
In a landmark decision dated 28 March 2025, the Appeals Board of the Common Market for Eastern and Southern African Competition Commission (“CCC”) delivered its ruling on the consolidated appeal by the Confederation Africaine de Football (“CAF”) and beIN Media Group LLC (“beIN”). The appeal challenged the findings of the Committee Responsible for Initial Determinations (“CID”) concerning alleged anti-competitive practices in the award of media rights for CAF competitions.[1] The ruling marks a significant development in the regulation of sports broadcasting within the Common Market for Eastern and Southern African (“COMESA”).
Background of the dispute
The dispute arose from two Memoranda of Understanding (“MOUs”), a 2014 and a 2016 agreement, between Lagardère Sports and beIN, granting the latter exclusive media rights to broadcast CAF competitions.[2] Following an investigation by the COMESA Competition Commission, the CID found that these agreements contravened Article 16(1) of the COMESA Competition Regulations due to their long-term duration, lack of competitive tendering, and bundling of rights across platforms.[3] As a result, the CID ordered that the agreements be terminated by 31 December 2024, imposed fines of USD 300,000 on each party, and directed CAF to adopt a new framework for awarding media rights in the future.[4] CAF and beIN lodged separate appeals, which were consolidated and heard by the Appeals Board in February 2025.[5]
Legal framework
The central legal provision at issue was Article 16(1) of the COMESA Competition Regulations, which prohibits agreements that may affect trade between Member States and have as their object or effect the prevention, restriction, or distortion of competition.[6]
In their defence, CAF and beIN invoked Article 16(4), which allows an exemption where restrictive agreements can be shown to yield efficiency benefits.[7] Specifically, the exemption requires proof that:
The agreement improves the production or distribution of goods or promotes technical or economic progress;
Consumers receive a fair share of the resulting benefits;
The restrictions are indispensable to achieving those benefits; and
The agreement does not eliminate competition in a substantial part of the market.[8]
The CCC argued that these justifications are cumulative, and that each one must be satisfied for the exemption to apply.[9] It maintained that CAF and beIN failed to discharge their burden of proof, particularly by not showing that the restrictions were indispensable or that consumers benefited proportionately from the arrangement.[10] According to the CCC, the claimed efficiencies, such as increased investment and improved broadcast quality, could be achieved through less restrictive means, such as open and transparent tendering processes.[11]
This interpretation reflects COMESA’s strict approach to Article 16(4), as further explained in its Restrictive Business Practices Guidelines.[12]
The appeals process
Following the CID’s decision on 22 December 2023, the appellants filed their Notices of Appeal in April 2024, arguing that the CID’s conclusions were flawed both factually and legally.[13] Key arguments raised included:
The absence of actual evidence of foreclosure or harm to competition;
Inappropriate market definition that excluded substitutable football content;
Overreliance on stakeholder interviews lacking methodological rigour;
Failure to consider the pro-competitive benefits of the agreements; and
The CCC responded by defending the findings of the CID and highlighting that the exclusive and bundled nature of the agreements had the potential to restrict competition, even if actual foreclosure was not demonstrated.[15] The CCC also refuted the claim that the SSNIP test (Small but Significant Non-transitory Increase in Price) was a required tool for market definition, noting that qualitative and contextual factors could be equally relevant.[16]
Decision of the appeals board
Rather than deliver a ruling on the merits of each legal issue, the Appeals Board opted to confirm a Commitment Agreement negotiated between the parties.[17] The Board emphasized that the agreement allowed for an efficient and proportionate resolution and noted that its authority to confirm such commitments is provided under Article 15(1) of the Regulations and Article 3(2) of the Appeals Board Rules.[18]
The terms of the Commitment Agreement included the following:
The 2016 beIN Agreement would remain in force until 31 December 2028, to avoid disruption of broadcasts;
CAF and beIN would each pay USD 300,000 to the Commission on a non-admission of liability basis;
CAF committed to conduct future tenders for broadcasting rights through open, transparent, and competitive processes in line with recent commitments made in other cases.[19]
Importantly, the Appeals Board found that maintaining the current agreement until 2028 would not hinder competition due to the additional behavioural safeguards included in the Commitment.[20]
Implications for African Football
The outcome of this appeal will have far-reaching implications for the governance of sports media rights across Africa. By endorsing a settlement that preserves the current arrangement in the short term but introduces future-oriented competition safeguards, the Appeals Board has sent a clear message that long-term exclusive deals without competitive processes will no longer go unchallenged.
This decision aligns COMESA with global best practices, such as those adopted by the European Commission and FIFA/UEFA and provides a blueprint for other African sports bodies seeking to commercialize rights while respecting regional competition law.[21] For broadcasters, it opens new opportunities to participate in tender processes. For viewers, it promises greater access and potentially more diverse coverage of African football events.
Conclusion
The Appeals Board’s decision represents a balanced and pragmatic resolution of a complex legal and economic dispute. While avoiding a full ruling on the disputed legal questions, the confirmation of the Commitment Agreement underscores COMESA’s dual priorities: promoting competition and preserving market stability. The legacy of this case will likely be seen in a more open and competitive broadcasting landscape for African football in the years to come
On 4 February 2025, the First Instance Division (the “FID”) of the COMESA Court of Justice (the “CCJ”) delivered a landmark judgment in Agiliss Ltd v. The Republic of Mauritius and Others (Reference No. 1 of 2019). This case examined the legality of a safeguard measure imposed by Mauritius on edible oil imports from COMESA member states, raising fundamental questions about trade remedies, due process, and compliance with the COMESA Treaty and its subsidiary legislation.
The judgment is significant as it clarifies the procedural and substantive requirements for imposing safeguard measures under the COMESA Treaty (the “Treaty”) and the COMESA Regulations on Trade Remedy Measures, 2002 (the “2002 Regulations”). It reinforces the principle that such measures cannot be used arbitrarily or as disguised trade barriers but must follow due process, including proper investigation, consultation, and notification requirements.
Background
The Common Market for Eastern and Southern Africa (“COMESA”) is a regional economic organization established in 1994 to promote economic integration and development among its member states. It has a primary goal of creating a large, integrated economic area through the removal of trade barriers and the promotion of cooperation in areas such as trade, industry, and agriculture. COMESA comprises 21 member states, including countries like Kenya, Egypt, Zambia, and Ethiopia, and focuses on fostering intra-regional trade through the harmonisation of customs procedures and the elimination of tariffs between member states. Article 46 of the Treaty specifically states that Member States of COMESA are required “to eliminate customs duties and other charges of equivalent effect imposed on goods eligible for Common Market tariff treatment” (COMESA Treaty, Art 46). This common market was ultimately formed to enhance trade and economic stability within the region, improve competitiveness, and encourage sustainable development through collective economic policies and regional cooperation.
Agiliss Ltd, a Mauritian based, imports various basic commodities which includes pre-packaged edible oils, from Egypt, a fellow COMESA Member State. Agiliss Ltd is “principally an importer and distributor of staple food in the Republic of Mauritius with the edible oil segment representing some 30% of its business” (para 11). In 2018, the Government of Mauritius (the “Government”), after seeing an increase in edible oil imports, invoked Article 61 of the Treaty to impose a 10% customs duty on edible oils imported from COMESA countries (para 12). This safeguard measure was said to be necessary to protect Mauritius’ domestic edible oil industry from serious economic disturbances.
Agiliss, however, raised its concern that the measure was imposed without proper notification, consultation, or investigation, violating various COMESA legal frameworks. After unsuccessful engagements with the Government, Agiliss Ltd filed a Reference before the CCJ, challenging the legality of the safeguard measure and requesting an order to prohibit its enforcement.
Findings of the Court
In this case, Ms. Ramdenee, CEO of Agiliss Ltd, and her expert witness, Mr. Paul Baker, presented a case to challenging the decision by the Government to impose a safeguard measure on edible oil imports from Egypt, a COMESA Member State, using Article 61 of the Treaty (para 151). Article 61 of the Treaty states, “In the event of serious disturbances occurring in the economy of a Member State following the application of the provisions of this Chapter, the Member State concerned shall, after informing the Secretary-General and the other Member States, take necessary safeguard 79 measures” (COMESA Treaty, Art 61).
The central claim was that Government violated the Treaty and the 2002 Regulations by not adhering to required processes, particularly in terms of the investigation and consultations related to the imposition of the safeguard measure.
The key issue was whether the Government conducted the investigation required by the 2002 Regulations and the Treaty before imposing the safeguard measure. The Government’s report on “Investigation on Imports of Oil” was deemed insufficient and non-compliant (para 163). Although the report referenced Regulation 7.1 of the 2002 Regulations, which allowed for safeguard measures due to “serious injury” caused by increased imports, it failed to comply with the more detailed procedural requirements of Regulation 8 of the 2002 Regulations, which mandates that investigations must include public notice, hearings, and the opportunity for stakeholders to provide evidence (para 162). Ms. Ramdenee argued that her company, as a major importer, was not consulted, and that this lack of due process would severely impact her business (para 157).
Moreover, the investigation was criticized for not being thorough or adequately substantiated. Mr. Baker pointed out inaccuracies, such as the failure to compare oil prices internationally, and argued that the alleged “surge” in imports was not supported by data (para 165). He further noted that the report’s conclusions about the link between import increases and the domestic industry’s decline lacked comprehensive evidence, specifically disregarding other relevant factors affecting the industry. The Government did not provide rebuttal evidence to counter these criticisms (para 165).
Additionally, the Government’s failure to notify the COMESA Committee on Trade Remedies as required by Regulation 15 of the 2002 Regulations was a significant violation (para 168). Although the Government argued that the Trade Remedies Committee did not exist at the time, the Court found that the absence of the Committee did not absolve the Government from conducting the investigation as required by Regulation 8 of the 2002 Regulations, which was not dependent on the Committee’s existence (para 171).
Lastly, the Court examined whether the safeguard measures imposed were necessary and proportionate. The proposed safeguard measure, which included a 10% customs duty on oil imports above a 3,000-tonne quota, lacked justification. There was no explanation provided for why these specific thresholds were chosen, and Mr. Baker suggested that the 10% rate appeared arbitrary and unsupported by any modelling or analysis of the impact on imports (para 177). Furthermore, the application of a quota and tariff did not align with Regulation 10.1 of the 2022 Regulations, which demands a careful analysis of market conditions to ensure that safeguard measures are not overly restrictive (para 178).
Ultimately, the Court found that the investigation carried out by the Government did not comply with the provisions of the Treaty and 2002 Regulations, and the proposed safeguard measure was not justified by sufficient evidence or proper procedures. In the final analysis, the Court has issued several key orders. First, the decision of the Government to impose the safeguard measure, along with all consequential steps taken, is declared a nullity (para 227(a)). In terms of costs, the Court has ordered the Government to pay half of the Agiliss Ltd’s costs incurred in this Reference (para 227 (c)).
Key aspects of the case
This case marks a significant milestone for the COMESA Court of Justice due to its critical examination of safeguard measures within the context of Common Markets. The FID’s ruling highlights key aspects of trade remedy procedures, particularly emphasising the importance of compliance with the COMESA Treaty and the 2002 Regulations. The Court’s findings reinforce that safeguard measures cannot be applied arbitrarily; they must adhere to proper investigation, consultation, and notification processes.
Furthermore, the judgment serves as a reminder that such measures must be substantiated with sufficient evidence to avoid being used as disguised trade barriers. The ruling clarifies procedural expectations for all COMESA member states, ensuring that trade remedies are transparent, fair, and justifiable in line with regional economic integration goals. Although safeguards are a vital tool for shielding domestic industries, the ruling underscores that they must not be applied without the proper investigations and Member State consultation processes. This case establishes a key precedent for future trade disputes within COMESA and emphasises the Court’s essential role in upholding the rule of law and interpreting the Treaty and its related regulations.
Zimbabwe’s Supreme Court hears competition matter between CTC & Innscor
By Jannes van der Merwe & Joshua Eveleigh
On 3 October 2024, the Supreme Court of Zimbabwe (“SCZ”) delivered a judgment in the matter of the Competition Tariff Commission v. Ashram Investments (Private) Limited, and Others, setting aside the order of the Administrative Court (“Court a quo”), which had previously set aside the order of the Competition Tariff Commission (“CTC”) (the appellant before the SCZ).
The decision by the CTC dates back to 2014, when the CTC rejected a merger application where Ashram Investments would obtain control of Profeeds and Produtrade. The CTC rejected the merger on the grounds that Profeeds and Ashram, which is wholly owned by Innscor, had shares in National Foods and Irvines (collectively referred to as “the Respondents”). The proposed merger was likely to give Profeeds and National Foods a monopoly in the stock feeds market. Subsequently, in 2015, the Respondents agreed to merge the entities and obtained 49% of the shares of the target entities, in an attempt to circumvent the regulatory framework.
By doing so, the Respondents obtained an increasing stake in the stock feeds market, where the vertically integrated Respondents operated together. Inscorr, through its subsidiary Irvines[1] and National Foods[2], operates in the stock feed market, spanning their activities over eggs, day old chicks and stock feed manufacturing. Profeeds is also in the market of manufacturing stock feed and poultry feed. [3]
The Respondents were advised to notify the CTC about the implemented mergers, which they did in 2019. The CTC investigated the matter and informed the Respondents, in terms of Section 31(5) of the Competition Act [Chapter 14:28] (“the Act”), that Ashram should divest from Profeeds and that the CTC would impose a penalty for the Respondents’ contraventions of the Act. The Respondents were given an opportunity to make representations regarding the CTC’s broad terms order.
The CTC held that the merger was not in the public interest and was likely to create a monopoly within the market, and that the Respondents failed to notify the CTC of the proposed merger as the Respondents surpassed the notifiable monetary threshold; accordingly, the CTC prohibited the merger. The Respondents appealed to the Court a quo, which upheld the appeal.
The CTC appealed the decision of the Court a quo to the SCZ on the principal grounds that the Court a quo’s findings were grossly unreasonable or irrational, and that it failed to determine that the merger was contrary to the public interest, resulting in a monopoly.
The SCZ opined that the Court a quo erred in allowing the merger. Further, the SCZ held that in terms of the Act, competition must be in the interest of the public and that parties must adhere to the provisions set out in the Act.
The SCZ considered the evidence indicating that, despite the short-term benefits that the Respondents might rely on, the Court a quo failed to consider the long-term effects of the proposed merger and the consequences that arise from a monopolistic enterprise.
The SCZ held that:
“Monopolistic tendencies must be carefully assessed because they may initially appear favorable, but in the long run, they may, when the monopolists get to the point where the market has no other option but to buy their goods, turn around and control even the economy of a country by producing highly priced goods or substandard goods sold at high prices.”
The SCZ relied on the Akzo matter where the COMESA Competition Commission had prohibited a monopolistic merger in Zimbabwe, where it was found that the merger of two strong paint brands would result in there being no effective competition in the market. The SCZ stated that:
“In the present case the court a quo ought to have upheld the prohibition of the merger taking into consideration the merging of Profeeds and National Foods which resulted in the concentration of industrial power in the two biggest companies in the stock feed industry. There are striking similarities between this case and the Akzo case”
This judgment has set a new precedent in Zimbabwe, reaffirming the sound principles set out in the Act and the consequences for parties who wish to jump the gun to circumvent legislation and regulatory authorities.
African Antitrust & Competition Law 