compliance, East Africa, Kenya, Price fixing, public-interest, trade associations

Kenya Antitrust Enforcer Reiterates Warning to Professional Associations

By Ruth Mosoti, Esq.

The Competition Authority of Kenya (CAK, or the Authority) issued a public notice to members of professional associations who are seeking to set minimum chargeable fees for their members notifying them that they need to comply with the provisions of the Competition Act. The Competition Act (the Act) provides for parties to file an application for an exemption on behalf of any association whose agreements may contravene the Act. Notably, the determination of an exemption application factors in public-interest considerations. In addition to this, when an exemption is granted, the same is not perpetual the period of validity of the exemption is at the discretion of the Authority.

Regulation of professional bodies is governed by different sources under Kenyan law. This can occur either through statutory law or rules issued by the professional bodies themselves. In Kenya we have professional bodies regulated by statute and others are wholly self-regulatory. This in turn brings in the issue of self-regulation and regulation by statute. As such, if a professional body is allowed by law to prescribe fees applicable for certain services offered by members of that association. Therefore, in such an instance then the Authority cannot fault such an association because the actions of the association are sanctioned by the law. In such an instance, the correct course of action would be the Authority to first seek intervention from the courts to declare such activities authorized by the law as unlawful and if successful, then any future activities of the association that involve the prescription of fees will be subject to an exemption application.

In 2017, the Institute of Certified Public Accountants of Kenya (ICPAK) made an exemption application in regard to prescribing of fees charged by its members and the same was rejected by the Authority. Following the rejection of their application ICPAK has opted to bypass the Authority and has begun to push for the prescription of the fees through the law and in 2020, they published the proposed remuneration order. Similarly in 2020, the Engineers through the Engineers board of Kenya also have the draft scale of fees for professional engineering services.

As mentioned above, there is the issue of self-regulation versus regulation by statute. Relevant Kenyan law includes the Statutory Instruments Act, which provides for the making, scrutiny, publication and operation of statutory instruments. Statutory instruments include but are not limited to rules, guidelines or by-laws made in execution of a power conferred by an existing statute. It is important to mention the Statutory Instruments Act because under this law, all statutory instruments are required to carry out consultations with the Authority to establish whether the proposed instrument restricts competition. It is however unclear whether the opinion of the Authority matters because despite complying with this requirement. What would be interesting to watch for now is whether ICPAK is successful in its quest for setting of professional fees there being a gazette notice where the CAK rejected its exemption application over the same subject matter.

Associations that self-regulate fall squarely within the jurisdiction of the CAK and that is why the Authority has in the past successfully pursued contraventions by trade associations like in 2016, the association members in the advertising industry who were involved in price fixing were penalized. This can be compared to the activities of the Law Society of Kenya  which are governed by statutes which empower it to recommend to the Chief Justice fees to be charged in relation to certain services offered by its members.

In conclusion, while the CAK may be justified in its quest to reign in the behavior of professional associations that are engaged in conduct that may amount to price-fixing, there needs to be a balance in the approach the CAK takes, where protection of fair remuneration is taken into account while preventing what would amount to abusive conduct. That being said, the CAK should also consider challenging the other laws that are in place that allow the professional associations to engage in conduct that it believes should be subject to an exemption application.

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buyer power, East Africa, Kenya

Kenyan Competition Law and the Enforcement of Buyer Power- a Step in the Right Direction?

By Jemma Muller and Keegan Sullivan

The Competition Tribunal (“Tribunal”) recently handed down a precedent-setting decision in the case of Majid Al Futtaim Hypermarkets Limited vs Competition Authority of Kenya and Orchards Limited which will not only set the scene on how the competition authorities will tackle the enforcement and assessment of buyer power in Kenya but will also have substantial consequences for retailers in Kenya.

In casu Orchards Limited (“Orchards”) alleged that Majid Al Futtaim Hypermarkets Limited (“Majid”) abused its buyer power. Majid is the operator of the supermarket “Carrefour”, which is supplied with probiotic yoghurts by Orchards. Majid was alleged to have abused its buyer power by: transferring commercial risks to Orchards; refusing to receive Orchards’ goods for reasons which could not be ascribed to Orchards; unilaterally terminating or de-listing the commercial relationship without notice and for no justified reason; applying rebates and listing fees marked as discounts; and requiring Orchards to deploy staff as its own cost.

The Tribunal ultimately upheld the Competition Authority of Kenya’s (“CAK”) judgment in finding, inter alia, that Carrefour abused its buyer power in relation to Orchards. While the Tribunal’s decision brings much-needed clarity on various issues, in particular how it will conduct its assessment of buyer power, which represents an area in competition law that has historically been unregulated, the assessment itself appears to only brush the surface in an analysis which typically (and with regard to comparative jurisdictions) necessitates a robust and thorough analysis.

The Commission, in reaching its decision vis-à-vis the existence and abuse of buyer power, based its decision on the Competition Act No 12 (“Act”), the Buyer Power Guidelines under part III of the Act, and international best practice. Section 24(2B) of the Act stipulates that the authority, in determining buyer power, must take into consideration:

“a) the nature and determination of contract terms;

b) the payment requested for access to infrastructure; and

c) the price paid to suppliers”

Section 24(2D) of the Act stipulates that buyer power means:

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

Of particular concern is the Tribunal’s approach and rationale in determining whether Majid had buyer power and whether it had abused its buyer power. Importantly, the Tribunal appears to be jumping the gun so to speak in expressing that “…the influence of power of the buyer becomes evident when the buyer engages in the offending conductand therefore, “by engaging in conduct which amounts to abuse of buyer power, there’s buyer power”. (our emphasis)

According to the Tribunal, the Act defines buyer power by reference to its effects. In casu, “abuse” was evidenced by, inter alia, declining to renegotiate terms, onerous rebates and listing requirements, and the refusal to take delivery of products that were delivered. This represents a notable departure from traditional competition law assessments of buyer power in various respects. In South Africa, for example, the assessment first centres around the existence of buyer power (which requires the buyer to be dominant), followed by whether there has been an abuse of that buyer power. Michael-James Currie from the Primerio International team notes that the Tribunal has essentially put the cart before the horse and notes that astute competition law counselling requires these trends and policy shifts to be well considered.

By engaging in what appears to be an ex-post assessment, the Tribunal’s judgment does not provide much insight or guidance to parties on how to ensure their conduct is aligned with the relevant provisions or how to negotiate trading terms common to commercial practice without facing potential accusations of abuse of buyer power.

Precedent on “buyer power” is scarce and therefore the precedent set by the Tribunal on the matter is of considerable importance both in Kenya and throughout Africa. When viewed comparatively the legislative framework governing “buyer power” in South Africa differs from the Tribunal’s judgment mainly on the requirement of “dominance”.

Section 8(4)(a) of South Africa’s recently amended Competition Act provides;

“It is prohibited for a dominant firm in a sector designated by the Minister in terms of paragraph (d) to directly or indirectly, require from or impose on a supplier that is a small and medium business or a firm controlled or owned by historically disadvantaged persons, unfair:

(i) prices; or (ii) other trading conditions.”

Contrastingly, the Buyer Power Guidelines under Kenyan law state:

“It is not necessary for the buyer to have a dominant position in the market. Although the provisions of abuse of buyer power are included under the provisions of abuse of dominant position, when assessing conduct that amounts to abuse of buyer power, proof of dominance is not a mandatory criteria.”

Additionally, the Tribunal did not undertake a robust assessment of the relevant market, or an analysis of potential foreclosure concerns, consumer welfare or efficiency. Rather, and instead of focusing on anti-competitive effects (which jurisdictions such as South Africa undertake), the Tribunal appeared to be more concerned with fairness to suppliers.

What remains to be seen is how the Tribunal will distinguish between, inter alia, those buyers who extract favourable trading terms by virtue of being dominant in the market vs those buyers who are not, without first undertaking a comprehensive assessment of the buyer’s position in the market.

This judgment, being the Tribunal’s first in relation to the abuse of buyer power, will shape the way in which buyer power will be assessed in Kenya. As such, it is vital that the competition authorities provide comprehensive guidance and much needed certainty to businesses.

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AfCFTA, Big Picture, COMESA, COVID-19, East Africa, event, Ghana, Kenya, Nigeria

Podcast explores latest developments across Africa

The latest episode #122 of Sheppard Mullin’s popular NOTA BENE podcast features Primerio’s Andreas Stargard, exploring “Africa Q2 Check In: Economic Growth and Relevance.”

Africa continues to strive for economic growth through various trade partnerships and foreign investments, but long-standing challenges remain an impediment in certain respects. Is Twitter’s decision to open an African base in #Ghana any indication of the continent’s economic potential? We’re joined by #Africa competition and markets expert, Andreas Stargard, a co-founding senior member of Primerio Ltd., as he shares insights on Africa’s economic outlook in Q2 of 2021.

You can listen to it for free on all major ‘podcatchers,’ including here:

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COMESA, East Africa, economics, Uganda

Uganda misses $5m Common Market payments, gets “suspension”

As the local Daily Monitor reports, landlocked COMESA member state Uganda — ruled since January 1986 by authoritarian president Museveni — has failed to make requisite payments under the COMESA Treaty to the supra-national regional organization. Its arrears date back over two years, according to sources, and amount to roughly U.S. $4 to 5 million. Arrears carry with them a 1% per annum interest rate.

COMESA’s Secretary General has officially reprimanded the Ugandan government and placed the nation on the organization’s “sanction bracket.” Andreas Stargard, an attorney with Africa boutique law firm Primerio Ltd., notes that being sanctioned carries with it the nation-state’s loss of all privileges of COMESA membership, including its key free-trading benefits, during the duration of the sanctions being imposed. “It also means that Ugandan officials are not permitted to address official COMESA bodies, nor are Ugandan citizens permitted to be appointed to, or hired by, COMESA organs. It remains to be seen whether this suspension of Uganda will impact competition-law enforcement in any direct, appreciable way — what comes to mind is merger notification and the impact that Uganda’s being sanctioned may have on cooperation between the CCC and Ugandan authorities.”

The outstanding debt is all the more concerning as Museveni’s administration, in an attempt to cling to power after 35 years, recently reportedly spent large sums out of the state’s coffers on military-grade weaponry to prepare for the chaos precipitated by the recent hotly-disputed elections.

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COMESA, East Africa, new regime

Chief enforcer departs CCC, Mwemba takes on role

February 17th, 2021: TODAY, the COMESA Competition Commission (“Commission”) released the following statement, wishing “to inform the general public that the tenure of office of Dr George Lipimile who was the Director and Chief Executive Officer of the Commission for the past ten years, came to an end on 31st January 2021.

Dr Lipimile was appointed by the COMESA Council of Ministers as the first Director and Chief Executive Officer of the Commission in February 2011. He served in this capacity at the Commission for ten years during which time he played a pivotal role in the establishment of the Commission as the first fully operational regional competition authority in Africa and the second fully functional regional competition authority in the world after the European Commission. Dr Lipimile tirelessly worked towards the enforcement of the COMESA Competition Regulations and Rules. He dedicated his time at the Commission in strengthening the institution with but not limited to:

  • Growth in its staff compliment;
  • Creating sound legal framework;
  • Processes and Procedures for enforcement of the Regulations;
  • Advocacy and technical assistance to COMESA Member States; and
  • Setting up the necessary corporate governance systems.

Further, the Commission wishes to announce to the general public that Dr Willard Mwemba has been appointed as the Acting Director and Chief Executive Officer of the Commission from 1st February 2021 until such time the substantive Director of the Commission is recruited. The Commission wishes to congratulate Dr Mwemba on his appointment as the Acting Director and Chief Executive Officer of the Commission.

Incoming Mwemba & outgoing Lipimile

Andreas Stargard, a Primerio competition lawyer who knows both men from having notified transactions to the CCC as well as socially, says that “an era is now concluded — namely the ‘Genesis Era’ of the CCC, as George was its very first, and thus formative, leader. That said, I am deeply assured by the appointment of Dr. Mwemba to his post as acting Director, as he is of utmost competence and I have no doubt will guide the Commission in the right direction in this new ‘CCC 2.0 Era’ after Dr. Lipimile’s departure.”

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AAT exclusive, AfCFTA, COMESA, EAC, East Africa, ECOWAS, fraud/corruption, Kenya, Nigeria, Rwanda, South Africa, Telecoms

Common Markets & the Race for Power in Africa: a Podcast Interview

Africa is a continent of 1.2 billion people.  From a consumer potential standpoint it matches China or India.  Yet historically, it has suffered from the lingering shadows of its colonial past, in addition to its current fractures, hostility, and ever-present corruption.

The continent is emerging fast, however, and is quickly accelerating into the 21st Century marketplace both from an investment and growth opportunity. From the digital revolution and increased free trade, to innovation in various industries, Africa may be the next market frontier to unfold into accelerated multinational presence.

In this podcast episode (available gratis on Apple, Spotify, and Sheppard Mullin‘s web site), Michael P.A. Cohen is joined by Africa competition and markets expert, Andreas Stargard, as he shares his insight to help multinationals navigate the African landscape.

What we discuss in this Podcast episode:

  • What do the Africa markets look like from a multinational business opportunity perspective?
  • Which countries in Africa have established markets? Which ones have growth potential?
  • How and why has China’s investment and influence across Africa intensified over the last couple of decades?
  • What type of digital revolution is taking place in Africa?
  • Is there a huge opportunity for mobile money on the continent?
  • How is free trade shaping up across the African continent? How do the AfCFTA’s goals tie in?
  • What Free Trade cooperation agreements exist among the East, West and South African nations? Will they succeed?
  • Where is Africa leading innovations?
  • How will African wars and corruption impact its ability to grow a multinational marketplace?

Who’s speaking:

Michael Cohen is the creator of the Nota Bene podcast. He began his career as an Assistant Special Prosecutor, investigating and prosecuting organized crime involvement with the failure of local financial institutions in the early 1990s, and has since practiced globally at several top law firms. In 2015, Michael joined Sheppard Mullin’s storied antitrust practice with a goal of putting his 25 years experience to work to complement the firm’s longstanding antitrust litigation group, helping to bridge government antitrust enforcement in Washington, D.C. to the firm’s strengths in Brussels, San Francisco and Los Angeles.

A co-founding senior member of Primerio, a business advisory firm helping companies do business within Africa from a global perspective, Andreas Stargard is legal, strategic, and business advisor to companies and individuals across the globe.  He focuses on antitrust and competition advice, white-collar counseling, contract dispute and negotiation, and resolution of global business disputes, including cartel work, corruption allegations and internal investigations, intellectual property, and distribution matters.  He has written and spoken extensively on these topics and many others.  Andreas also advises clients on corporate compliance programmes that conform to local as well as global government standards, and has handled key strategic merger-notification questions, including evaluation of filing requirements, avoidance strategies, cross-jurisdictional cooperation, and the like.

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AAT exclusive, COMESA, COVID-19, East Africa, exemptions, Kenya, public-interest

Antitrust enforcer to allow self-assessment of competitor collaborations amidst pandemic

Following the (thus far rarely used) “Block Exemption” procedure under Section 30 (2) of the Kenyan Competition Act, the Competition Authority of Kenya (“CAK”) has proposed a new set of draft Guidelines as to competitor collaborations during the COVID-19 pandemic, so as to assist with the country’s economic recovery efforts. It specifies five (5) focus sectors, namely Manufacturing, Private Healthcare, Aviation, Travel & Hospitality, and Health Research. The Guidelines are ostensibly inapplicable to firms that engage in economic activity outside these five sectors.

In issuing its soon-to-be finalized guidance, the CAK wishes to provide “direction to undertakings in making a self-assessment as to whether the agreements, decisions or practices which they intend entering into will qualify for block exemption within the Covid-19 Economic Recovery Context without the need to seek the Authority’s intervention.” (A.(4))

A key aspect, in the view of antitrust litigator Andreas Stargard, is the renewed attention given to “public-interest factors” in competition law.

He believes that this concession to non-traditional competition-law theory is “necessitated by the broad economic havoc COVID-19 has wrought, including on historically peripheral-to-antitrust aspects such as overall employment, public health, en masse business closures, and the like, which would normally not be highly relevant factors in the strict sense of conducting a rigorous competition-law analysis.”

Stargard continues that “Condition III of the CAK’s so-called ‘Self-Assessment Principles‘ expressly highlights this element, namely forcing firms to evaluate whether their proposed collaboration with competitive entities is ‘in the public interest, such as creation of employment’,” citing para. 11(vii) of the draft Block Exemption Guidelines on Certain Covid-19 Economic Recovery Priority Sectors.

The CAK’s proposal thus strongly echoes what its regional sister authority, the COMESA Competition Commission (“CCC”) openly discussed as early as July of last year. As we wrote in our assessment of the official CCC staff’s thoughts on competition enforcement amidst the pandemic in 2020:

The concept of non-competition factors (i.e., the public-interest element) was also raised, as there is a “growing debate on whether the pandemic may necessitate changes in [the] substantive assessment of mergers, e.g., towards more lenient consideration of failing firms.”

As Andreas Stargard observes, “just as COVID-19 is truly global, Kenya and COMESA are likewise not alone in their quest to master the difficult balancing act between sufficiently enforcing their domestic or regional antitrust laws versus allowing reasonable accommodations to be made for necessary competitor collaborations in light of the pandemic’s impact. Indeed, other enforcers have also made accommodations for such unusual collaborative efforts, given the emergency nature of the pandemic.”

In the U.S., the federal antitrust agencies have issued analogous guidance for competitors, issuing a joint guidance document specifically on health-care providers collaborating on necessary public-health initiatives. What stands out is the agencies’ express invitation for health-care players to take advantage of the (now-expedited to 7 days’ turnaround time) business-review/opinion-letter procedures.   Mr. Stargard notes however that, unlike the Kenyan proposal of “self-assessment by the affected entities, the American approach still necessitates an affirmative approach of the enforcers by the parties, seeking official sanctioning of their proposed cooperation by submitting a detailed explanation of the planned conduct, together with its rationale and expected likely effects.

By way of further example, in Canada, as the OECD notes, the government “has developed a ‘whole-of-government action’ based on seven guiding principles including collaboration. This principle calls on all levels of government and stakeholders to work in partnership to generate an effective and coherent response. These principles build on lessons learned from past events, particularly the 2003 SARS outbreak, which led to dedicated legislation, plans, infrastructure, and resources to help ensure that the country would be well prepared to detect and respond to a future pandemic outbreak.”

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AAT exclusive, cartels, collusion, East Africa, Kenya, leniency, leniency / amnesty, Price fixing, Whistleblower reward

New Antitrust Whistleblower Reward Scheme: Are ‘Paltry’ Rewards & Anonymity Enough?

As of January 1st, 2021, Kenya’s competition-law enforcer, the Competition Authority of Kenya (CAK), started benefitting from its new “Informant Reward Scheme” (IRS). The IRS encourages “confidential informants” — often also referred to as “whistleblowers” — privy to inside information about antitrust offenses to come forward and report the illicit conduct to the Authority.

The IRS incentivizes informants with promises of anonymity as well as — rather modest, as we will see — monetary rewards: the CAK vows to maintain the confidentiality of the informant’s identity, and provides for up to Sh1,000,000 (approximately US$9,100 at today’s Fx rate).

Andreas Stargard, a competition lawyer active on the African continent, has delved more deeply into the CAK’s enabling “Guidelines” document, trying to ascertain the precise contours of the IRS program. He reports as follows:

AfricanAntitrust.com: “Who is eligible to participate in the IRS?”

Andreas Stargard: “What we know from the implementing Guidelines, and also from Director General Kariuki‘s speech on the IRS, is that only third parties or those individuals playing merely a remote and peripheral role in relation to the anti-competitive conduct are eligible to benefit from the IRS. This means that a 3rd-party customer, or a non-executive employee such as a secretary or copy clerk of the offending company, may report wrongdoing under the IRS.”

AAT: “What about insiders with executive authority, then?”

Stargard: “Similar to Western countries’ antitrust regimes, those individuals can still report illicit conduct by their employers, but they would have to resort to the Kenyan leniency process as opposed to the Informant Reward Scheme.”

AAT: “Understood. Are there other, similar whistleblower schemes in existence?”

Stargard: “Yes. We recently held a very timely webinar with leading international and African experts on the topic of whistleblowing, which I moderated. A recording of it is available on the web. Whistleblowing has become an important piece of the enforcement puzzle for many governmental authorities around the globe, not only on competition issues. In Kenya, specifically, President Kenyatta recently doubled the rewards for tax-fraud whistleblowers, who are now entitled to receive up to Sh5,000,000 ($45,000), and the country’s revenue service implemented the so-called iWhistle portal to allow informants to report tax fraud anonymously.”

AAT: “Speaking of money, what is your take on the amount of the offered reward under the terms of the IRS?”

Stargard: “Frankly speaking, one million Kenyan shillings is a paltry sum. I cannot comprehend how reporting a competition-law violation such as a price-fixing cartel that may cost the Kenyan economy and its consumers billions in losses is deserving of 5-times less reward than an informant reporting an individual’s tax fraud to the revenue service, which may cause significantly less injury to the government purse than an international cartel of corporates…”

AAT: “Strong words.”

Stargard: “I’m serious. Compare and contrast the meager sum of not even US$10,000 maximum IRS reward with the potential 5-year prison sentence liability for executives convicted of collusion! There is simply no comparison…”

AAT: “In a perfect world, what would you change about the Kenyan whistleblower scheme?”

Stargard: “If I had had any input into the process of devising the IRS Guidelines, I would have ensured that the maximum reward amount be commensurate with the economic harm and financial damage done by cartels — in short, I would raise the IRS reward to an un-capped straight-up percentage portion of the fines recovered by the CAK. The more, the better for everyone.”

AAT: “Do you have any parting words or final observations on the IRS program for our readers?”

Stargard: “Well, for starters, it is not too late to implement changes to the regime. The CAK (and the legislature, to the extent necessary) can easily increase the maximum reward, as I proposed earlier. I am certain that it would yield better results than the current Sh1m cap, which can easily be ‘outbid’ by an already-corrupt employer, seeking to ‘buy’ its employees’ loyalty! So, Mr. Kariuki, if you’re reading this interview, I’d strongly suggest considering an increase in the reward.

Secondly, from our international experience, we know one thing about ‘secret’ informant schemes: One key element of any successful whistleblower regime (besides ensuring adequate rewards) is the strictest maintenance of confidentiality of the informant’s identity. I realize that section ‘F’ of the Guidelines assures the public that anonymity will be guaranteed and that the CAK will ‘take utmost care to ensure that the identity of the confidential informant is not disclosed.’ However, as an attorney, I can only say that the proof is in the pudding. We will have to wait for the first proceedings pursuant to IRS-provided reports, in order to determine whether or not the whistleblowers’ anonymity will indeed be preserved successfully in practice. That said, I look forward to advising clients on the many issues that are likely going to arise from the Scheme!”

AAT: “Thank you for your time and insights on this new development!”

CAK Director General Wang’ombe Kariuki
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AAT exclusive, COMESA, commissioners, East Africa, mergers, new regime, personnel

COMESA seeks replacement for CCC’s Dr. Lipimile

The COMESA Competition Commission has announced that it is accepting applications for the position of Director of the CCC until the end of October.  Says Andreas Stargard, an antitrust practitioner with Primerio Ltd.:

“The post is currently held by Dr. George Lipimile, the agency’s first and, therefore by definition, most influential chief.  Dr. Lipimile has certainly steered the comparatively young Commission into the right direction during its formative years, notably overseeing a complete makeover of the merger-notification procedure early on in the process, after much criticism of the initial system.

We are curious to see who will replace him in March 2021, as Dr. Lipimile’s term expires at the end of February.  Will it be a true competition-law expert, or will it be a politically-motivated appointment made by the COMESA Secretariat, pushing for someone who is more of a trade lawyer or, worse, economic protectionist.  What the CCC needs now to continue gaining international recognition and respect (from its peer agencies, as well as from commercial parties!) is a qualified antitrust attorney who understands the law & economics aspect of competition practice, and who will apply these principles neutrally throughout the COMESA region!”

Dr. Lipimile

George Lipimile, CEO, COMESA Competition Commission

Back in 2015, we quoted Mr. Stargard as follows, suggesting a path forward for the agency:

“If the CCC steps up its enforcement game in the non-transactional arena, it could become a true force to reckon with in the West.  I can envision a scenario where the CCC becomes capable of launching its own cartel matters and oversees a full-on leniency regime, not having to rely on the ‘follow-on enforcement’ experience from other agencies abroad.  The CCC has great potential, but it must ensure that it fulfills it by showing principled deliberation and full transparency in all of its actions — otherwise it risks continued doubt from outsiders.”

It remains to be seen who the Director’s replacement will be and which of these topics will dominate her or his agenda, if any.  The Director’s term is for 5 years, offering a salary of between $70,000 and $83,000.  Details on the opening can be found here.  Only Member State nationals can apply.  Interestingly, COMESA member states’ antitrust enforcers likewise posted the announcement on their individual web sites:

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COMESA, COVID-19, East Africa, FAQ

COMESA retains 30-day merger notification requirement during COVID pandemic, but loosens some rules

The COMESA Competition Commission (CCC) has, along with several other competition-law enforcers on the African continent, issued new guidance on timing and other implications relating to the COVID-19 pandemic.  The text of the official announcement is below:  

CCC-Notice-4-of -2020

NOTICE OF INTERIM MEASURES IN MERGER REVIEW OF THE COMESA COMPETITION COMMISSION DUE TO THE COVID-19 PANDEMIC

The COMESA Competition Commission (the Commission) is aware that these are unprecedented, uncertain and challenging times for undertakings and other stakeholders. In view of this, the Commission wishes to notify the general public and all interested parties that as a result of the global Covid-19 pandemic it has issued the following interim processes for merger reviews under the COMESA Competition Regulations (the Regulations) and the COMESA Competition Rules (the “Rules”).

  1. Receipt of Merger Notifications

Parties to a Merger are encouraged to submit all notifications and filing of mergers and acquisitions electronically including certified copies of filings. This therefore means that the parties shall not be expected to submit the hard copies within the specified 7 days under the COMESA Merger Assessment Guidelines. The hard copies may still be submitted by the parties at a later date when it is possible under the circumstances.

  1. Notification of a Merger following a Decision to Merge by the Parties

Pursuant to Article 24 (1) of the Regulations, parties to a merger should notify the Commission within 30 days of the decision to merge. The Commission takes cognizant that due to restrictions of movements and lockdowns in most countries as a result of the CoVID-19 Pandemic, some parties may not be able to gather all the information to enable them complete the notification within the 30 days period provided under Article 24(1) of the Regulations. The Commission is cognizant that section 5 of the Guidelines provides for the notification process and gives guidance to what amounts to a complete notification. During this temporal period, the Commission shall consider the initial engagement with the parties as the beginning of the notification process which shall be considered complete once all the information is submitted. It follows therefore that as long as the parties have engaged the Commission on the notification process, they shall not be penalized for failure to submit complete information within 30 days of the parties’ decision to merge.

  1. Consultations and Meetings

The Commission has suspended onsite investigations and face-to-face meetings with regard to merger investigations. However, consultations and meetings shall continue to be held through teleconferencing facilities until the situation normalises.

  1. Investigation Period of 120 Days

The Commission observes that under the current situation, it may not be able to complete its assessment of mergers and acquisitions that has been notified and yet to be notified in accordance with the 120 days stipulated under Article 25 (1) of the Regulations. This is due to travel bans and lockdowns in most Member States. These conditions shall affect the Commission’s engagements with various relevant stakeholders who are essential in the consultative process adopted by the Commission pursuant to Article 26 of the Regulations. Therefore, the merging parties should take note that the 120 days investigation period may be extended in some cases pursuant to Article 25 (2) of the Regulations as it may not be practicable to complete the assessment within 120 days under the circumstances.

If you wish to seek further details and/or clarifications on any aspect of this Notice, you may get in touch with Mr. Willard Mwemba, Manager, Mergers and Acquisitions, on +265 (0) 1 772 466 or via email at compcom@comesa.int and/or wmwemba@comesa.int.

Further, note that the Commission may update and revise this notice from time to time.

 

George K Lipimile

Director & Chief Executive Officer

 

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