While the ECOWAS competition regime is not new in and of itself (it was adopted in 2008), the actual operationalization of the ECOWAS Regional Competition Authority (ERCA) is — its inaugural ceremony in took place this past Tuesday in The Gambia, 11 years after its technical launch (although it was established jointly with the adoption of the ECOWAS competition legislation, it remained non-operational for over a decade). Its mission is to enforce the multi-national body’s Regional Competition Policy Framework (RCPF).
ERCA’s efforts will be supported by the twin launch of the ECOWAS technical committee meeting of national trade and competition representatives to assist in implementing the RCP, including both its competition/antitrust as well as consumer protection mandates.
ERCA is a specialized, autonomous quasi-judicial body designed to help promote regional economic growth and competitiveness in the ECOWAS common market.
Andreas Stargard, a competition law practitioner with a focus on African antitrust issues, noted that the ECOWAS rules, while not enforced in practice until now, will reflect more of a European approach to competition regulation, as “they include provisions to evaluate and render invalid certain types of governmental support for domestic champion companies and industries, akin to the EU model of ‘state aid’ rules, which do not always form part of antitrust regimes globally. This makes sense, in our view, in the African context, however, as most domestic economies on the continent have long been subject to state-owned monopoly enterprises and so-called national champions — one need not look further than the various large African state-owned airlines, for example.”
He concluded that two key issues remain to be seen, once ERCA launches its first investigations and brings enforcement actions: “First, with the increasing number of regional enforcers, how will jurisdictional overlaps be resolved, both regional/national, as well as regional/regional, conflict? Many ECOWAS members are also part of other African multi-national organizations that have some form of competition or consumer protection regulations as part of their mandate, such as the west African monetary union. Second, what will the be the degree — if any — of ‘public interest’ considerations that may be in play for the 15-member state body’s antitrust enforcement, perhaps copying many of its African sister commissions’ approach…”
Time will tell…