Category: jurisdiction

AfCFTA Anchors Aweigh: Novel Pan-African Antitrust Regulator Takes Shape

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Having reported on the promise and challenges of the African Continental Free Trade Area (“AfCFTA”) and its regulatory ambitions previously here, our Editor was fortunate to attend the inaugural AfCFTA conference of competition-law experts this week. Reporting from Lomé, Togo, he relayed an excellently-planned and executed meeting — cleverly scheduled adjacent to the massive annual Biashara Afrika 2026 convention taking place in the Togolese capital this year, drawing thousands of attendees from the trade and commerce world. Together, under the broader umbrella of “Powering Africa’s Economic Transformation through the AfCFTA,” the two events convened policy-makers and business leaders to push for a single market and boosting Africa’s trading position on the global stage.

Over 200 participants attended the antitrust conference, with its theme of “Harnessing Competition as a Catalyst for African Market Integration,” assembled by the leadership of Malick Diallo, Head of AfCFTA’s Competition Division and his Ghana-based team of organizers. The competition-focused meetings at the five-star Hôtel 2 Février were well attended throughout both days, covering topics ranging from the tricky subject of multi-jurisdictional mergers with regional overlaps to digital-market regulation and, importantly, listening to the private bar for their input.

In total, the meeting comprised 5 sessions and 3 keynotes over the course of two days, including speeches by NYU’s Prof. Eleanor Fox, the FCCPC legend Babatunde Irukera, Leonard Ugbajah of ERCA, and the European Commission’s DG COMP as well as OECD. Participants notably took in lessons learned from other regional enforcers (Dr. Willard Mwemba and Alexia Waweru from COMESA, Simeon Koffi, and Mor Backhoum from ECOWAS, the EAC, WAEMU and the AU) as well as National Competition Authorities. The latter ranged from Kenya, Egypt, Tanzania, Nigeria, Mauritius, South Africa, Tunisia, and others to the European Union and delegates from Switzerland and the World Bank. While David Kemei (CAK) and Florence Abebe (FCCPC) spoke on behalf of their agencies, notably absent from the discussion were representatives from the United States enforcement agencies, belying a further retrenchment of the DOJ and FTC’s prior capacity-building activities and international involvement under the current administration.

“I see the AfCFTA as perhaps the single most important building block for a truly cohesive, pan-African trade and commerce community so far,” says AAT’s Editor, Andreas Stargard, who attended the conference in his capacity as a practitioner with Primerio International. “Coming from quite a bit of EU and COMESA multi-national experience, I believe that managing those clearly unavoidable  jurisdictional conflicts in a regional body from the get-go will be crucial to its success, lending credence to the ‘Competition as Catalyst’ theme of the conference…”.

Below is the AfCFTA’s Concept Note, outlining further details surrounding the event:

THE AfCFTA INAUGURAL CONFERENCE ON COMPETITION POLICY AND LAW

A joint initiative of the AfCFTA Secretariat, the Organisation for Economic Co-operation and Development (OECD) and the European Union (EU)

Theme: 

“Harnessing Competition as a Catalyst for African market integration”

Lome, Togo                                                                                  19-20th May 2026

Introduction

  • Africa is entering a new phase of its economic integration journey. The African Continental Free Trade Area (AfCFTA) — the largest free trade area in the world by number of participating countries — has set in motion a transformation of the continent’s economic architecture. With a combined market of over 1.4 billion people and a GDP approaching USD 3.4 trillion, the AfCFTA offers an unprecedented opportunity to deepen intra-African trade, accelerate industrialisation, and position Africa as a global economic force. Realising that opportunity, however, requires more than the removal of tariffs and border barriers. It requires markets that are genuinely open, contestable, and fair — markets where competition determines outcomes, not the power of incumbents or the distortions of anti-competitive conduct.
  • That is where competition policy comes in. A dynamic, well-enforced competition framework is not a regulatory luxury; it is a foundational condition for the AfCFTA to deliver. It ensures that the gains of trade liberalisation are not captured by dominant incumbents, cartels, or anti-competitive mergers. It creates the conditions for new entrants, innovative businesses, and African SMEs to compete on merit. It underpins consumer welfare, productive investment, and the structural transformation that Africa’s integration agenda demands.
  • To support this vision, the Assembly of Heads of State and Government of the African Union, at its 36th Ordinary Session held in Addis Ababa, Ethiopia, on 18–19 February 2023, adopted the Protocol to the Agreement Establishing the African Continental Free Trade Area on Competition Policy (the “AfCFTA Competition Protocol”). The Protocol establishes a continental competition regime aimed at enhancing competition within the AfCFTA for improved market efficiency, inclusive growth, and the structural transformation of the African economies.
  • At the same time, African competition authorities and policymakers are being asked to grapple with increasingly complex issues: how to manage overlapping national, regional, and continental competition regimes; how to align competition, trade, and industrial policy objectives; how to tackle long‑standing competition problems in transport and logistics; and how to respond to the rapid rise of powerful digital platforms and new forms of market power in the digital economy. Despite significant progress, important gaps remain. A recent survey of competition frameworks conducted by the AfCFTA Secretariat and the OECD found that while 76.2% of surveyed African jurisdictions have a competition law framework in place, significant disparities persist in enforcement capacity, institutional design, and coherence between national, regional, and continental regimes.
  • The AfCFTA Conference on Competition Policy and Law  2026 is conceived as a practical, forward‑looking response to these challenges. Jointly convened by the AfCFTA Secretariat, the Organisation for Economic Co‑operation and Development (OECD) and the European Union, it provides a continental platform where competition authorities, trade and industrial policymakers, sector regulators, business leaders, legal practitioners, academics and development partners can think together about how competition policy can best support Africa’s integration and development ambitions.
  • The inaugural edition focuses on four interconnected themes that are shaping the continent’s competition agenda today, namely:
  • the emerging architecture of an integrated African competition regime which discusses the interplay between national, regional, and continental competition frameworks;
  • the interaction between competition, trade and industrial policies;
  • competition in the transport and logistics sector as a cornerstone of trade facilitation; and
  • competition and regulation in digital markets.

The Conference is designed not only to exchange experiences, but to generate concrete ideas on how to make these frameworks work in practice for a dynamic and integrated African market.

Conference Theme

  • The theme of the inaugural Africa Competition Conference is “Harnessing Competition as a Catalyst for African market integration”.
  • The theme captures a core belief of the Conference: that competition policy is not simply a compliance obligation, but a powerful driver of economic integration, productive investment, consumer welfare and sustainable development. It challenges participants to reflect on how competition law and enforcement can be shaped, implemented and coordinated across Africa to unlock the full integration gains of the AfCFTA.

Objectives and target audience

  • The overall objective of the Conference is to foster high-level, practical dialogue among competition authorities, regulators, policymakers, business practitioners, academics, and international experts on the key challenges and opportunities in African competition policy; and to generate concrete ideas that can inform future work under the AfCFTA.
  • More specifically, the Conference aims to:
  • Build a shared understanding of how the AfCFTA continental competition framework interacts with existing national and regional regimes, and how overlapping jurisdictions and enforcement responsibilities can be managed effectively;
  • Examine the interaction between competition, trade, and industrial policy under the AfCFTA, with a focus on practical approaches for ensuring coherence and managing tensions in key sectors;
  • Identify priority enforcement and regulatory actions to improve competition in Africa’s transport and logistics sector, with a view to reducing trade costs and facilitating intra-African trade;
  • Advance the understanding and implementation of Article 11 of the AfCFTA Competition Protocol in digital markets, including approaches to economic dependence, gatekeeper designation, and the interpretation of gatekeeper obligations;
  • Solicit practical perspectives from business leaders, legal practitioners, and in-house counsel on how African competition frameworks operate and how they can be strengthened; and
  • Lay the groundwork for a programme of future cooperation, technical work, and capacity-building under the AfCFTA, in partnership with the OECD, EU, regional economic communities, and other partners.

Conference Sessions: Background, Key Issues and Structure

Session 1: The triangle of policies – Competition, trade and industrial policy in Africa

  • Africa’s development strategy relies on an active industrial policy to build productive capacity and accelerate structural transformation, trade policy to manage market access across borders, and competition policy to discipline anti-competitive conduct. These three policy strands share the overarching goal of improving economic performance but can generate significant tensions, particularly at the sectoral level. The way in which these policies interact depends both on their underlying objectives as well as on the way in which they are designed and implemented.
  • Industrial policy instruments such as state aid, sector-specific incentives, special economic zones, and strategic procurement can create market distortions when poorly designed or captured by incumbents. Trade measures such as anti-dumping duties may protect domestic industries at the cost of consumer welfare. Conversely, aggressive competition enforcement, if not carefully attuned to development context, can undermine legitimate scale‑building and coordination efforts that industrial policy seeks to foster. Getting the balance right is one of the defining policy challenges for African integration.
  • This session draws on case studies from Africa and comparative experiences from other regions to explore practical approaches workable within the AfCFTA framework. It will examine:
  • Where competition, trade, and industrial policy are consistent and reinforce each other — and where tensions arise in practice;
  • The role of competition authorities as institutional voices  supporting a pro-competitive design or implementation of industrial and trade policy processes;How State Parties, RECs and the AfCFTA can promote policy convergence across the three domains; and
  • Lessons from jurisdictions that have successfully balanced competition and industrial policy goals.
  • Critical issues: Can African industrial policy ambitions be pursued without sacrificing the competitive market structures that drive long-term productivity? What role should competition authorities play in designing and reviewing industrial policy measures and what policy instruments should be considered to ensure industrial policies are pro-competitive? What level of convergence in competition, trade and industrial policy is realistic and desirable under the AfCFTA, and how can State Parties, RECs and AfCFTA institutions sequence this convergence over time? Which concrete experiences from other regions in aligning industrial strategy with competition rules are most transferable to African conditions, and what adaptations are required to make them fit the AfCFTA context?

Session 2: Towards an integrated African continental competition regime – The interplay between national, regional, and continental competition frameworks

  • Africa’s competition landscape is being reshaped by the AfCFTA Competition Protocol, which adds a continental layer to existing national laws and regional regimes such as those of COMESA, ECOWAS, the EAC and WAEMU. This deepens the integration architecture but also raises practical questions about overlapping jurisdictions, potentially conflicting obligations and greater regulatory complexity for businesses operating across borders. A central concern for practitioners, authorities and policymakers is how these interlocking regimes will function day to day.
  • This session will explore the emerging architecture of an integrated African competition regime. Discussions will cover:
  • The distinct features of existing supranational frameworks and their interaction with national laws and the AfCFTA regime;
  • The opportunities and challenges of cross-border enforcement, including coordinated investigations, merger control, and cooperation between national and regional bodies;
  • How businesses can navigate an evolving multi-level regulatory landscape;
  • Lessons from comparable supranational architectures, including the EU; and
  • The status of AfCFTA competition regulations and the roadmap to operationalisation.
  • Critical issues: How can concurrent jurisdiction be managed to minimise conflict and duplication, while fostering consistent outcomes? What institutional and procedural mechanisms are needed to coordinate enforcement between national authorities, REC bodies, and the future AfCFTA Competition Authority? How can the continental regime support, rather than burden, smaller jurisdictions with nascent competition frameworks?

Session 3: Levelling the playing field – Competition in Africa’s transport and logistics sector

  • The transport and logistics sector constitutes a cornerstone for the development of an integrated internal market in Africa. However, transport and logistics costs are among the highest globally, operating as a de facto tariff on intra‑African trade. Regulatory shortcomings and anti‑competitive conduct in this sector are a major part of the problem: restrictive and onerous licensing and access regimes, fragmented multi‑modal regulation across borders, cartels in road freight, concentrated control over ports and terminals and gaps in essential infrastructure access all depress trade, push up prices and undermine the competitiveness of African producers.
  • As the AfCFTA deepens tariff liberalisation, the relative importance of logistics costs as a constraint on trade increases. Sector-specific regulatory assessment and reform, complemented by robust competition enforcement, is therefore a necessary companion to trade liberalisation. This session brings together competition authorities, transport regulators, corridor agencies, and industry representatives to identify the main sources of competitive harm, share enforcement and regulatory experience, and discuss targeted reforms.
  • The session will address:
  • How existing regulatory frameworks (licensing, concessions, access rules, corridor agreements) shape market structure and entry, and where they unintentionally hinder access, increase discretionary powers and entrench monopolies or cartels;
  • The main patterns of anti‑competitive conduct in key transport and logistics markets (road freight, ports and terminals, aviation, multimodal logistics), and how they affect prices, service quality and reliability;
  • The Yamoussoukro Decision and Single African Air Transport Market (SAATM) from a competition perspective;
  • Practical cooperation models between competition authorities, transport regulators and corridor institutions for investigating and remedying harmful practices;
  • The role of competition assessments and market studies in informing transport and logistics reform under the AfCFTA; and
  • How to incorporate competition objectives into ongoing regional infrastructure initiatives and corridor development programmes.
  • Critical issues: How can competition authorities and transport regulators coordinate to address practices that span their respective mandates? Which regulatory reforms would most effectively improve contestability in key transport markets? How can the AfCFTA regime support an effective and coordinated approach to removing competition barriers in logistics?

Session 4: Competing in the digital age – Digital trade, platform markets, and Article 11 of the AfCFTA Competition Protocol

  • Digital trade is reshaping African markets and will increasingly determine whether African businesses and consumers participate competitively in the broader global economy. Africa’s digital economy is characterised by fast-growing platform markets, expanding mobile and fintech ecosystems, and the rapid penetration of digital intermediaries into commerce, payments, logistics, and communications. This creates new opportunities but also new forms of market power and dependence.
  • Article 11 of the AfCFTA Competition Protocol is the continent’s primary legal tool for tackling competition concerns in digital markets. It introduces the notion of “economic dependence”, prohibits abuses of that dependence that significantly harm competition in the AfCFTA market, sets out a detailed list of forbidden practices for core platforms (such as self‑preferencing, certain parity and anti‑steering arrangements, tying, and unjustified limits on data portability and interoperability), and mandates the development of a Regulation to identify and subject “gatekeeper” platforms to these obligations.
  • At the same time, the AfCFTA Digital Trade Protocol, adopted in February 2024, sets harmonised rules on e‑commerce, data flows and digital identities, making coherence between competition and digital trade rules an important implementation challenge.
  • The session will explore:
  • Defining and assessing economic dependence in African digital markets in practice; what indicators and evidence are relevant, and how this differs from standard dominance analysis;
  • The specific prohibited practices in Article 11; how they should be interpreted, which are most relevant to African market realities, and what enforcement challenges they present;
  • Options for a gatekeeper designation framework under Article 11(5), drawing on the EU Digital Markets Act and other international experience while calibrating criteria and thresholds to African conditions;
  • The enforcement capacity and institutional tools that authorities need to investigate digital platform conduct under Article 11; and
  • The interface between Article 11 and the Digital Trade Protocol on data portability, interoperability, and access to data.
  • Critical issues: How should economic dependence be assessed where multi-homing is possible but switching costs are high? What designation criteria would be both rigorous and proportionate for African digital markets? How can authorities with limited resources build capacity to investigate platform conduct? How can coherence between Article 11 and the Digital Trade Protocol be ensured?

Special Segment: The Lome Roundtable: Voices from business and the bar

  • This special segment departs from the formal panel format to provide an open forum where business leaders, legal practitioners, and in-house counsel engage directly with competition authorities and policymakers. The Lome Roundtable is designed to bring out the day‑to‑day concerns and realities of dealing with African competition regimes: compliance costs, merger clearance timelines, enforcement unpredictability, market access barriers, and the challenges of navigating multi-level competition regimes, that may not be fully visible from a purely institutional perspective.
  • The Roundtable reflects the Conference’s commitment to ensuring that competition law serves not only as an enforcement instrument but as a framework that enables businesses to operate, grow, and trade across African borders with confidence. Open and structured dialogue between enforcers and the business community is a hallmark of mature competition systems, and the Lome Roundtable is designed to institutionalise this practice at the AfCFTA level.
  • It will address:
    • Practical experience with African competition regimes: what works, what creates uncertainty, and what imposes disproportionate compliance costs;
  • How authorities can improve transparency, predictability, and responsiveness including in merger review, guidelines, and stakeholder engagement;
  • The specific challenges of operating across multiple overlapping competition jurisdictions; and
  • Practical suggestions for how the relevant stakeholder can improve competition frameworks from a business perspective.
  • Critical issues: What are the most significant compliance and enforcement challenges for businesses operating across African borders? How can merger review be made more streamlined and predictable? What kinds of guidance, tools or platforms would most help businesses navigate overlapping competition regimes?

Expected Outcomes

  • The expected outcomes of the Conference include:
  • A shared, practical understanding of how the AfCFTA continental competition framework interacts with regional and national regimes and the roadmap for its operationalisation;
  • Concrete insights and practical approaches for managing the interaction between competition, trade, and industrial policies at the national, regional, and continental levels;
  • A set of regulatory actions and priority enforcement to identify and address regulatory barriers and anti-competitive practices in Africa’s transport and logistics sector, with concrete suggestions for cooperation between competition authorities and sector regulators;
  • Key questions, indicators, and options for implementing Article 11 of the AfCFTA Competition Protocol in digital markets — including ideas for a gatekeeper designation framework and priority areas for guidance and capacity-building; and
  • Practical suggestions from business leaders and legal practitioners on improving the clarity, predictability, and accessibility of African competition frameworks.

COMESA’s New Competition & Consumer Protection Regulations: Game-Changer for Regional Enforcement?

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By Tyla Lee Coertzen and Joshua Eveleigh

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.

Regional Rapprochement Refined – Concurrences 10-2025Download

Merger Control

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.

Borrowed Blueprints, Unintended Consequences: South Africa and the EU’s Digital Markets Act

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By Matthias Bauer and Dyuti Pandya*

South Africa risks adopting the essence of the EU’s Digital Markets Act (DMA), if not its exact form, with the aim of reshaping the business models of online intermediation platforms. This marks a significant shift away from the principles of traditional competition regulation. 

In 2020, the Competition Commission of South Africa (CCSA) concluded that traditional enforcement tools might be inadequate to tackle structural barriers in digital markets particularly those that prevent new entrants or smaller players from expanding. This realisation led to the launch of the Online Intermediation Platforms Market Inquiry (OIPMI). By borrowing a regulatory blueprint designed for the EU, South Africa could undermine its own digital ecosystem, stifle investment, and entrench local inefficiencies. The country’s growing interest in ex ante competition regulation via the Competition Commission’s market inquiries reflects an accelerating trend of policy mimicry without consideration of domestic realities. While there is broad agreement on the need for digital competition regulation, there is little consensus on how these rules should be structured, and approaches to implementation remain highly varied across jurisdictions. 

The OIPMI’s final report identified platforms such as Google, Apple, Takealot, Uber Eats, and Booking.com as dominant players distorting competition. It is claimed that, due to the significant online leads and sales these platforms generate and the high level of dependency business users have on them these scaled platforms can influence competition among businesses on the platform or exploit them through fees, ranking algorithms, or restrictive terms and conditions. However, this conclusion raises concerns about the underlying methodology. A central concern with the market inquiry approach is that it allows certain platforms to be identified as market leaders or sources of competitive distortion without requiring a formal finding of dominance, since such inquiries do not mandate that dominance be established. 

The designation has been based on characteristics typically associated with globally leading technology firms. Amazon, which currently maintains only a minimal presence in South Africa, was nevertheless singled out as a potential threat to competition. It is claimed that Amazon faces similar complaints in other jurisdictions, and it is argued that fair treatment of marketplace sellers is unlikely to become a competitive differentiator capable of overcoming barriers to seller competition. Moreover, the CCSA has indicated that it would enforce the same provisions against Amazon if it were to enter the market in a way that breaches the proposed remedial measures.

Regulating for hypothetical risks while ignoring tangible consumer benefits risks becoming a self-fulfilling prophecy: global platforms may decide not to enter the market at all, leaving consumers, including small businesses and public services organisations with fewer options and slower innovation.

The OIPMI focuses on structural features that restrict competition both between platforms and among business users, facilitate the exploitation of business users, and hinder the inclusion of small enterprises and historically disadvantaged firms in the digital economy. Despite the absence of formal dominance findings, the OIPMI proposes a range of heavy-handed interventions, including the removal of price parity clauses, the introduction of transparent advertising standards, a ban on platform self-preferencing, and limitations on the use of seller data, many directly inspired by the EU DMA. 

In both of CCSA’s  2022 and 2023 findings, Google Search was explicitly accused of preferential placement and distorting platform competition in South Africa. More concerning still are the CCSA’s proposed remedies in its final report- requiring targeted companies to offer free advertising space to rivals, artificially boost local competitors in search rankings, and redesign their platforms to favour smaller firms. The SACC has recommended that Google introduce identifiers, filters, and direct payment options to support local platforms, SMEs, and Black-owned businesses, and contribute ZAR150 million (around EUR 7 million) to offset its competitive advantage. For search results, Google is required to introduce a new platform sites unit (or carousel) that prominently showcases smaller South African platforms relevant to the user’s query such as local travel platforms in travel-related searches entirely free of charge. This goes beyond competition enforcement and crosses into market engineering, compelling global firms not just to compete by government decree, but to subsidise rivals and actively shape market outcomes.

In 2025, South Africa’s Competition Commission also doubled down with its provisional Media and Digital Platforms Market Inquiry (MDPMI), calling for additional remedies targeting online advertising, content distribution, and the visibility of news media. These recommendations are again influenced by EU-style regulations, particularly the EU Copyright Directive, which harms the diversity and sustainability of small news publishers. However, the report downplays South Africa’s unique institutional constraints and specific market dynamics. If adopted, the proposals would compel digital platforms to subsidise select publishers based on arbitrary and hard-to-measure assessments of news content’s value to Google’s business. This could limit access to information, hinder innovation, and monetisation efforts, ultimately narrowing consumer choice and weakening the vibrancy of the content ecosystem.

More broadly, through these market inquiries South Africa risks undermining its evolving digital economy by pursuing an approach that will deter foreign investment due to ambiguous and discretionary enforcement. At the same time, the proposed regulatory burdens could disproportionately affect domestic firms that simply lack the resources to comply. This regulatory uncertainty threatens to stifle innovation and hinder progress toward regional digital integration. In a country where corruption remains a persistent challenge, granting regulators wide discretionary powers over digital market outcomes also raises serious governance concerns. Moreover, by enforcing a narrow and politicised notion of “fairness”, South Africa risks sacrificing consumer choice and strangling the diversity of digital services that a competitive market would otherwise deliver.

Notably, coming back to the EU’s DMA, it was crafted for specific European conditions, particularly in markets where technologically-leading global platforms held relatively high market shares in many EU Member States. Yet even within the EU, the DMA remains hotly disputed – not least because it targets large non-European companies that have long been politically embraced for injecting digitisation into traditional industries and, through competition, helped European businesses and consumers benefit from technology innovation. 

EU digital policies, developed from the perspective of wealthy, mature (Western) European markets, should not be assumed to be readily applicable elsewhere. South Africa’s digital markets are still in their infancy, ICT infrastructure remains unevenly developed, and regulatory institutions face significant resource constraints. Emulating the DMA – even informally – risks premature intervention, regulatory overreach, and the distortion of competitive dynamics before they have had a proper chance to emerge and mature.

Competition policy undoubtedly has a role in promoting competition. But poorly tailored rules may end up punishing the very firms that South Africa needs to scale and empower its own digital economy. Instead of replicating the EU’s Digital Markets Act, South Africa should focus on evidence-based case-by-case enforcement – grounded in its own market realities and institutional capabilities. Otherwise, South Africa risks becoming the casualty of a regulatory experiment designed for a different continent – with consequences its digital economy can ill afford.

*The authors are affiliated with ECIPE, the European Centre for International Political Economy

Nigeria Flexes Regulatory Muscle: Tribunal Upholds $220 million fine against WhatsApp and Meta over data discrimination practices  

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By Nicole Araujo

On 25 April 2025, almost a year after the Federal Competition and Consumer Protection Commission (“FCCPC”) imposed a hefty $220 million fine on WhatsApp and its parent company, Meta, the Competition and Consumer Protection Tribunal (“Tribunal”) delivered its landmark decision, upholding the fine and ordering a further – almost negligible, when compared to the substantive fine – $35,000 administrative penalty against the social media giants for fact-finding costs incurred during the 38-month long investigation. This regulatory win for Nigeria’s digital rights landscape has contributed to reinforcing Nigeria’s growing resolve to regulate big tech.

The decision stemmed from findings that the companies engaged in discriminatory data practices and violated Nigerian data protection laws, affecting more than 51 million users.  As Andreas Stargard, a competition-law practitioner with Primerio, notes, “not only did the FCCPC’s investigation uncover WhatsApp’s unauthorised sharing of user data and a lack of meaningful consent mechanisms, but it also revealed discriminatory practices compared to other regions – I believe this is where the differentiation in the FCCPC’s consumer-protection jurisdiction (as opposed to that of the domestic data protection authority) comes in meaningfully.  It remains to be seen what an independent, judicial review of the Tribunal decision will yield in this regard, but the FCCPC has had a comparatively strong track record so far in terms of having its novel, forceful, and ‘creative’ enforcement strategies upheld, with the B.A.T. matter perhaps being the most powerful example.  The recent Dangote matter, involving the shocking fact pattern of a lack of refining capabilities in oil-rich Nigeria, is an interesting counter-point, though, as the FCCPC lost an attempt to intervene in that matter in Abuja’s Federal High Court.”

So far, the appellate-level Tribunal has sided with the Commission, dismissing an appellate request for review by WhatsApp and Meta, which challenged the fine on 22 grounds, ranging from procedural errors to allegations of vagueness and technical impossibility in respect of the timeframe given by the FCCPC. Meta’s legal team relied on the grounds that the FCCPC’s orders were unclear, unsupported by Nigerian law, and financially impractical to comply with. However, the FCCPC argued that the penalties were not financially punitive but rather corrective and aimed at rectifying the tech giant’s alleged discriminatory practices.

In its decision, the Tribunal emphasised that the FCCPC acted within its lawful mandate and that WhatsApp and Meta were afforded a fair hearing. It further upheld that the reliance on foreign legal standards, while not binding, was appropriately persuasive in determining issues of data protection and consumer rights.

The Tribunal ordered WhatsApp and Meta to inter alia, reinstate Nigerian users’ rights to control their personal data, revert to their 2016 data-sharing policy, and immediately cease unauthorised data sharing with Facebook and other third parties without obtaining the necessary consent from users. In this regard, compliance letters must be submitted by July 1, 2025, and a revised data policy must be proposed and published. 

This case marks a significant moment in the Nigerian Authority’s forceful use of the regulatory tools available to it — as well as overall for Africa’s evolving digital economy, highlighting the demand for global corporations to acknowledge local presence and effects and adapt to robust local compliance expectations. While Big Tech companies such as Amazon, Google and Meta have been subject to significant penalties under the European Union’s General Data Protection Regulation, as one of Africa’s digital technology pioneers, Nigeria’s move could inspire similar enforcement actions across the African continent. This decision can be seen as a “gentle” reminder for multinational digital and tech firms that compliance with local data protection laws is no longer optional, it is imperative.

Babatunde Irukera, Florence Abebe, Andreas Stargard at the African Antitrust Salon hosted by Primerio

While more African countries are pushing back against big tech companies and are focusing on unchecked data exploitation within their borders, there is a need, however, for the continent to build towards a larger, sustainable strategy to manage the presence and power of big tech.  Says Andreas Stargard, “the quarter-billion dollar Meta fine, if upheld, would firmly cement Nigeria’s antitrust global relevance in the minds of international lawyers and businesses.  This comes as a surprise in some ways, as the FCCPC was first put on the map only fairly recently, by its inaugural Chief enforcer, Tunde Irukera: his vision for creative enforcement tools and encouragement of the agency’s staff to employ heretofore unused investigatory mechanisms and strategies – often seen only in U.S.-style civil litigation, and certainly not in many government agencies worldwide, much less among other African jurisdictions – show that the Commission potentially has the necessary intellectual capacity and investigatory stamina to pursue cases of equal or greater dimensions in the future.  It will depend on its leadership where the FCCPC’s path is charted next…”

Of course, there needs to be a balance struck between the value of personal data and that of innovation and tech adoption, which calls for a coordinated regulation policy that will strive to balance economic and non-economic features of the continent. 

As observed by Leonard Ugbajah, a competition law consultant, a balanced and pragmatic approach is essential when opting to address the regulatory landscape around big tech: 

“A common approach would harness the capabilities of countries, moderate opportunism by state and non-state actors in pursuing enforcement, recognise the economic importance of big tech, properly calibrate the various pain points (economic and non-economic) and safeguard the interests of the not-so-capable African countries.” 

The social media giants have 60 days, starting from 30 April 2025, to comply with the $220 million fine ordered by the Tribunal. Notably, following the decision, WhatsApp has indicated that it intends to seek a stay of the Tribunal’s decision and pursue an appeal. 

New antitrust MoU between COMESA & EEC

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No, that’s not the European Economic Community, but rather the slightly less well-known Eurasian Economic Commission (EEC), thank you for asking…

The Memorandum of Understanding, signed in late July in Geneva, is designed to allow the two agencies to “cooperate in addressing anti-competitive conduct in their respective regions, capacity building and research,” according to AAT’s old friend and CCC 2.0 executive, Dr. Willard Mwemba.

His EEC counterpart, Mr. Arman Shakkaliyev, Minister in charge of Competition & Antitrust Regulation, said that the future collaboration “opened up new opportunities” for closer interaction and the sharing of experiences and knowledge as to specific investigations, most notably, in addition to the two agencies planning more standard cooperative ventures such as joint conferences or training seminars.

Says Andreas Stargard, a competition lawyer at Primerio Ltd.:

“This latest MoU represents yet a further step in the clear and unmistakable direction of ever-closer cooperation between enforcement agencies on the African continent that we have seen for a few years now. The advice to be taken from this is fairly simple: Companies operating in more than one country in Africa should take note of this development, as their local ‘competition reputation‘ from one jurisdiction will doubtless precede them in the other, given the information-sharing between African watchdogs, which catches many corporates seemingly unawares…”

Kenyan Competition Watchdog suspends Telkom Kenya / Airtel deal

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Multiple regulatory agencies, competitor complaints and public interest concerns has posed a significant impediment to the proposed merger between Telkom Kenya and Airtel.

The Competition Authority of Kenya (CAK) recently announced that the Kenyan Ethics and Anti-Corruption Commission (EACC) is investigating Telkom Kenya amidst allegations of corruption in relation to historic transactions which gave rise to the current shareholding in Telkom Kenya.

The CAK’s decision to suspend the assessment of the merger was announced approximately a week after the Communications Authority of Kenya also suspended its assessment of the transaction pending the outcome of the EACC’s investigation.

The Communications Authority’s investigation will likely include an assessment of a complaint filed with the agency by Safaricom, a competitor to the merging parties.

Furthermore, the deal was also opposed by certain Telkom employees, ostensibly on the basis that their jobs were at risk should the deal go ahead.

Accordingly, the parties appear to have a long road ahead of them before clearance to implement the deal is granted.

The proposed transaction has no doubt attracted an additional degree of scrutiny as the telecom sector in Kenya is a significant market and there have been a number of disputes regarding the CAK’s jurisdiction to assess anti-competitive conduct, particularly abuse of dominance conduct, in this sector. A study into the telecom sector prepared by the Communications Authority was presented to Parliament in 2018. The CAK objected to the findings and remedial actions contained in the report which the CAK argued would amount to “price regulating” by the Communications Authority. Instead, the CAK urged the Communications Authority to focus rather on features of the market which raise barriers to entry or preclude effective competition between competitors.

While Parliament has, as far back as 2015, urged the Communications Authority to consult the CAK before making any determination regarding a telecom service providers’ “dominance”, subsequent litigation led to a High Court ruling in 2017 which confirmed that the Communications Authority’s powers vis-à-vis competition related matters remain vested exclusively with the Communications Authority.

The concurrent jurisdiction between the CAK and the Communication’s Authority has created somewhat of an enforcement discord – at least in so far as assessing abuse of dominance cases are concerned.

The fact that both the CAK and the Communications Authority have decided to suspend their assessments of the proposed merger following the outcome of the EACC’s investigation suggests that the outcome of the EACC’s investigation is relevant to both the CAK and Communication Authority analysis of the proposed transaction. This in turn, seemingly appears that there is at least an overlap in relation to the key issues under assessment by the respective agencies. Assuming there is indeed an overlap between the CAK and the Communication Authority’s assessment of the proposed transaction that naturally raises the risk of having two agencies come to different conclusions based on the same facts.

Telkom Kenya, however, remain confident that the merger will ultimately be cleared by all regulators.

Telkom Kenya have indicated that the merger will have significant pro-competitive and pro-public interest benefits which will have a positive impact on employees (and the market more generally). Whether the CAK conducts a comprehensive assessment between the short term negative impact on employment versus long term positive impact remains to be seen.

Assuming the proposed deal does not raise any traditional competition issues, it cannot therefore be ruled out that the transaction will be approved subject to public interest related conditions regarding retrenchments and/or re-employment obligations.

Whatever decision is ultimately reached, one hopes that the authorities will publish detailed reasons based on a robust assessment of the evidence in order to provide greater objectivity and transparency as to the analysis which is undertaken by the CAK when analyzing a merger – both from a competition and public interest perspective.

The CAK has in the past number of years have made significant positive strides forward in this regard and is deserved of the recognition it receives as one of the most active and robust competition authorities in Africa.

[Michael-James Currie is senior contributor to AAT and a practicing competition lawyer who has assisted clients with competition law related matters in multiple jurisdictions across Africa]

 

 

 

 

 

 

 

 

 

Beyond Pure Competition Law – Is Africa Leading the Way Forward in Antitrust Enforcement?

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To all our Africanantitrust followers, please take note of the upcoming American Bar Association webinar on 2 July 2019 (11amET/4pmUK/5pm CET) titled:

“Beyond Pure Competition Law – Is Africa Leading the Way Forward in Antitrust Enforcement?”

In what promises to be a highly topical (telecon) panel discussion, Eleanor Fox, Andreas Stargard, John Oxenham, Amira Abdel Ghaffar and Anthony Idigbe will:

  • provide critical commentary of the most recent developments in antitrust policy across the African continent;
  • highlight the most significant legislative amendments and enforcement activities in Africa; and
  • analyze some of the key enforcement decisions.

South Africa, Nigeria, Egypt, COMESA and Kenya are among the key jurisdictions under the microscope.

Practitioners, agency representatives, academics and anyone who is an antitrust enthusiast will find this webinar to be of great interest. Not to mention companies actually active or looking to enter the African market place.

For details on how to participate, please follow this Link

 

 

 

 

 

 

New Kenya domestic merger thresholds proposed, limiting notifications

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The Competition Authority of Kenya (“the CAK”) has issued a new proposal introducing financial thresholds for merger notifications which will exempt firms with less than 1 billion Kenyan Shillings (KSh)(approximately US$10 million) domestic turnover from filing a merger notification with the CAK.

Currently, it is mandatory to notify the CAK of all mergers, irrespective of their value.  According to Stephany Torres of Primerio Limited, this may deter investments in Kenya as the merger is subject to delays and additional transaction costs for the merging parties while the CAK assesses it.

In terms of the new proposal notification of the proposed merger to the CAK is not required where the parties to the merger have a combined annual turnover and/or gross asset value in Kenya, whichever is the higher, of below KSh500 million (about US$5 million or South African R60 million).

Mergers between firms which have a combined annual turnover or gross asset value, whichever is the higher, in Kenya of between KSH 500 million and KSH 1 billion may be considered for exclusion.  In this case, the merging parties will still need to notify the CAK of the proposed merger.  The CAK will then make the decision as to whether to approve the merger or whether the merger requires a more in depth investigation.

It is mandatory to notify a merger where the target firm has an annual revenue or gross asset value of KSh 500 million, and the parties’ combined annual turnover and/or gross asset value, whichever is the higher, meets or exceeds KSh 1 billion.

Notwithstanding the above, where the acquiring firm has an annual revenue or gross asset value, whichever is the higher, of KSH 10 billion, and the merging parties operate in the same market and/or the proposed merger gives rise to vertical integration, then notification to the CAK is required regardless of the value of the target firm.  However, if the proposed merger meets the thresholds for notification in the supra-national Common Market for Eastern and South Africa (“COMESA”), then the CAK will accede to the jurisdiction of the COMESA Competition Commission (“CCC”) and the merging parties would not have to file a merger with the CAK.

COMESA is a regional competition authority having jurisdiction over competition law matters within its nineteen member states, of which Kenya is one.

It is worth mention that Kenya is also a member state of the East African Community (“the EAC”).  As AAT reported recently, the East African Community Competition Authority (“the EACCA”) became operational in April 2018 and its mandate is to investigate competition law matters within its five partner states  (Burundi, Kenya, Rwanda, Tanzania and Uganda).  There is no agreement between the CAK and EACCA similar to the one between the CAK and CCC, and it uncertain how mergers notifiable in both Kenya and the EAC will be dealt with.

 

COMESA Competition Chief Approves of FDI, M&A Transactions

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Lipimile Advocates for Foreign Direct Investment, Encouraging Acquisition-Hungry Multi-Nationals in Recent COMESA Trade Remarks

In a comment on the COMESA Simplified Trade Regime (STR) regional programme, recently being implemented locally in the border region between Rwanda and the DRC, George Lipimilie, the Chief Executive Officer of the COMESA Competition Commission, stated that the regional body’s “focus on free movement of goods has generally paid dividends resulting in [] a lot of cross-border mergers and acquisitions,” according to an article in the Rwanda New Times.

George Lipimile of the COMESA Competition Commission

It appears that the CCC chief is expressly favouring foreign direct investment into the region by way of mergers (or perhaps more accurately, acquisitions).  “This is particularly so where the ‘foreign’ (presumably implying non-COMESA) multi-national entity brings with it novel technologies or R&D to improve the market position of the local competitor,” according to Andreas Stargard, a Pr1merio Ltd. competition-law practitioner.

Of interest to M&A practitioners, Mr. Lipimile is quoted as saying: “There are situations when foreign companies use acquisitions to enter the market where you find a multinational company buying a local company which is good because it comes with a lot of technology.” (Emphasis added).

Mr. Lipimile was also rather specific about encouraging FDI in the region’s raw-materials sector from nation states other than the PRC: said Lipimile, “[w]e have seen China taking advantage of our raw materials and we hope more countries can follow suit.”

We note that the domain of international trade — specifically tariffs as barriers to trade — has historically not been within the jurisdictional purview of the COMESA Competition Commission, which was designed to be a competition-law enforcement body.  Technically, there exists the post of COMESA Director for Trade, Customs & Monetary Affairs, held by Dr. Francis Mang’eni and not by Mr. Lipimile.  The CCC, however, “has recently emerged to take a more active role within the COMESA architecture of regional enforcement institutions,” Mr. Stargard says.  He notes that Article 4 of the COMESA Treaty expressly provides that “[i]n the field of trade liberalisation and customs co-operation [the Member States shall] (a) establish a customs union, abolish all non-tariff barriers to trade among themselves”, and that the regional Competition Regulations expressly bestow the CCC with the authority to investigate and abolish all “anti-competitive practices affecting COMESA regional and international trade.”

Namibian Supreme Court rules Competition Commission has no Jurisdiction Over Medical Aid Fund Members

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By AAT contributors Charl van der Merwe and Aurelie Cassagnes

On 19 July 2017, the Namibian Supreme Court, was tasked with settling a long standing dispute (not the first of its kind) as to whether or not the Respondents fell within the jurisdiction of the Namibian Competition Commission (NCC) in terms of the Namibian Competition Act of 2003 (Namibian Act). The case was brought on appeal by the Namibian Medical Aid Funds (NAMAF) and its members (collectively referred to as the Respondents).

After an investigation lasting a couple of years, the NCC announced in November 2015 that it had considered the behaviour of the Respondents in setting a “benchmark tariff” and found that the practice amounted to Price Fixing in contravention of section 23 of the Namibian Act. The Respondents, in pre-empting the commission’s planned litigation, disputed the NCC’s jurisdiction. The High Court found in favour of the NCC which led to the appeal by the Respondents to the Namibian Supreme Court.

Benchmark tariffs, in short, is a recommended fee, payable to doctors, at which medical aid expenses and consultations are covered. The issues surrounding benchmark tariffs has sparked debate across Africa with ‘those for’ arguing that without them, the medical profession would be “nothing short of economic lawlessness” whilst critics argue that it is “quietly killing off the health-care profession”.

The Namibian High Court, in finding against the Respondents, confirmed the NCC’s jurisdiction over the matter and ruled that determining and recommending a benchmark tariff for medical services was unlawful because it amounted to fixing a selling price. The court, in making its decision, held that “The funds’ activities in formulating a benchmark tariff were not ‘designed to achieve a non-commercial socioeconomic objective’. Rather, it was to produce and distribute wealth.” (Own emphasis)

The main issue to be decided on appeal by the Namibian Supreme Court, however, was not whether the benchmark tariff amounted to a contravention of the Namibian Act, but rather, whether the NCC had jurisdiction over the matter. In other words, whether the Respondents were included under the definition of ‘undertakings’ in terms of the Namibian Act.  Chapter 1 of the Namibian Act provides that:

An “’undertaking’ means any business carried on for gain or reward by an individual, a body corporate, an unincorporated body of persons or a trust in the production supply or distribution of goods or the provision of any service”

The Namibian Supreme Court found that the Respondents were not a “business carried on for gain or reward” and, therefore, were not subject to the provisions of the Namibian Act. As such, the Namibian Supreme Court overruled the High Court’s decision, leaving NAMAF and its members to continue the use of benchmark tariffs.

The South African Competition Tribunal (SACT) had similarly dealt with this issue in a series of Orders during the course of 2004 and 2005 (see the Hospital Association of South Africa and the Board of Healthcare Funders of Southern Africa). In this regard, the SACT found that the relevant medical schemes (the Respondents) fell within the ambit of the South African Competition Act 89 of 1998 (South African Act) and, accordingly, imposed an administrative penalty on the Respondents for “benchmarking tariffs”.

In its consent orders, the South African Competition Commission (SACC), despite mentioning that the Respondents were “an association incorporated not for gain in terms of the company laws in South Africa”, held that the Respondents are an association of firms that “determines, recommends and published tariffs to and/or for its members; and which recommendations has the effect of fixing a purchase price”

Furthermore, the SACC, condemned the ‘benchmarking tariffs system’ put in place by the Respondents and argued, despite the fact that the health care professionals were still largely free to determine their own fees, publishing these recommendations amounted to price-fixing which is a per se contravention in terms of section 4(1)(b) of the South African Competition Act.

Accordingly, the differing approaches in Namibia and South Africa come down to the interpretation of what entities fall within the umbrella of the respective Competition Acts.