Category: merger documentation

Draft Amendments to South Africa’s Merger Thresholds and Filing Fees Published for Public Comment

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By Matthew Freer

Introduction

On 27 January 2026, the Minister of Trade, Industry and Competition, Mr Mpho Parks Tau, published a series of draft notices in the Government Gazette proposing significant updates to South Africa’s merger control regime. These include draft amendments to the merger thresholds under section 11 of the Competition Act, 89 of 1998 (the “Act”), as well as a separate draft amendment to the merger filing fees payable to the Competition Commission.

Together, the proposed changes reflect the first inflationary adjustment to South Africa’s merger notification framework in several years and are intended to align regulatory thresholds and fees with prevailing economic conditions.

Draft amendment to merger thresholds

In Government Notice No. 7029, published in Government Gazette No. 54020, the Minister, acting in consultation with the Competition Commission, invited public comment on proposed amendments to the Determination of Merger Thresholds set out in Part A of General Notice 1003 of 2017 (published in Government Notice No. 41124 of 15 September 2017).

The notice is issued in terms of section 11 of the Act and confirms the Minister’s intention to:

  • amend the existing merger thresholds; and
  • make a new determination of merger thresholds as set out in the Schedule to the notice.

Method of calculation remains unchanged

Importantly, the Minister has expressly confirmed that the Method of Calculation remains unchanged. The method set out in Part B of General Notice 1254 of 2017 (published under Government Notice No. 41245 of 10 November 2017) will continue to apply. Turnover and asset values must therefore still be calculated in accordance with International Financial Reporting Standards (“IFRS”), applying the same methods and principles currently used by the Competition Commission.

The Schedule further retains the existing definitional framework, including the definition of a “transferred firm” aligned with section 12 of the Act.

Revised lower (intermediate) merger thresholds

A merger will meet the lower threshold if both of the following requirements are satisfied:

  • The combined annual turnover in, into or from South Africa, or the combined asset value in South Africa, of the acquiring and transferred firms is R1 billion or more (up from R600 million); and
  • The annual turnover or asset value in South Africa of the transferred firm is R175 million or more (up from R100 million).

Revised higher (large) merger thresholds

A merger will meet the higher threshold if both of the following requirements are satisfied:

  • The combined annual turnover in, into or from South Africa, or the combined asset value in South Africa, of the acquiring and transferred firms is R9.5 billion or more (up from R6.6 billion); and
  • The annual turnover or asset value in South Africa of the transferred firm is R280 million or more (up from R190 million).

Merger classification unchanged

The proposed amendments do not alter the categorisation of mergers under the Act:

  • Small mergers fall below either value of the lower threshold;
  • Intermediate mergers meet the lower threshold but fall below the higher threshold; and
  • Large mergers meet or exceed the higher threshold.

Draft amendment to merger filing fees

Published simultaneously, Government Notice No. 7030 in Government Gazette No. 54021 proposes amendments to Rule 10(5) of the Rules for the Conduct of Proceedings in the Competition Commission and inflationary adjustment to the merger filing fees gazetted in General Notice 1336 of 2018 (published in Government Notice No. 42082 of 4 December 2018), dealing specifically with merger filing fees.

This notice is issued in terms of section 21(4) of the Act, in consultation with the Commissioner, and invites public comment on a draft amendment aimed at effecting an inflationary adjustment to merger filing fees. The fees were last updated in 2018 and have remained unchanged since.

Proposed revised merger filing fees

Under the draft amendment to Rule 10(5), the filing fees for merger notifications will increase as follows:

  • Intermediate mergers: from R165,000 to R220,000;
  • Large mergers: from R550,000 to R735,000.

No changes are proposed to the structure or timing of fee payments, only the quantum payable upon filing.

Public participation and next steps

Stakeholders and interested parties are invited to submit written comments on both draft notices within 30 business days of publication. Submissions must be addressed to the Minister of Trade, Industry and Competition, for the attention of Dr Ivan Galodikwe, either by email or by hand delivery to the Department’s offices in Sunnyside, Pretoria.

If finalised, the combined effect of the proposed amendments will be to:

  • reduce the number of transactions requiring mandatory notification; while
  • increasing the cost of filing notifiable intermediate and large mergers.

Together, these measures signal a recalibration of South Africa’s merger control regime to reflect inflation and economic growth, without altering the underlying legal framework or analytical methodology applied by the competition authorities.

Conclusion

John Oxenham, director at Primerio, notes that “the step taken by the DTIC to increase the financial thresholds for purposes of merger regulation in South Africa demonstrates a move towards greater ease in deal negotiation and has been welcomed by the economy. Parties must still, however, note that while the thresholds may indicate fewer notifications being required be submitted with the South African competition authorities, the Commission may require mandatory notification of small mergers (i.e., mergers which do not meet the intermediate thresholds).”

What’s Changing? An overview of the South African Competition Commission’s recent Draft Guidelines

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by Michael-James Currie and Kelly Baker

Pre-merger filing consultation process

The Competition Commission of South Africa (“Commission”) is fundamentally reshaping how it conducts market oversight through a series of new draft guidelines designed to enhance clarity and a more speedy regulatory processes. One of the most significant changes involves introducing a voluntary, informal, and confidential pre-merger consultation. This process aims to simplify the evaluation of complex Phase II and Phase III mergers, enabling parties to address competition concerns or major public interest issues, including HDP ownership or large-scale retrenchments before they are formally filed. By encouraging merging parties or business rescue practitioners to tender appropriate remedies or competitive assessments upfront, the Commission seeks to reduce regulatory costs and accelerate review timelines.

The draft guidelines on the Pre-Merger Consultation Process can be accessed here.

Online intermediation platforms

For the digital economy, the Commission issued a guidance note for online intermediation platforms, shifting its focus from static market shares to “gatekeeper” characteristics. These platforms often benefit from extreme scale economies and powerful network effects, creating a “virtuous cycle” where a high volume of users makes the platform invaluable to businesses, but also creates significant dependency. The Commission identifies several practices that are likely to harm competition, starting with price parity clauses. Wide price parity prevents businesses from offering lower prices on any other platform, while narrow price parity restricts them from pricing lower on their own websites. As a result, both can entrench a leading platform’s position and discourage price competition. Additionally, a lack of interoperability (the ability for different systems to exchange information and work together) can reinforce a platform’s market power by preventing users from mixing services from different providers. Self-preferencing is another red flag, where vertically integrated platforms favour their own products in rankings or charge lower fees to their own affiliates compared to third-party competitors.

Furthermore, the Commission warns against the misuse of non-public, competitively sensitive data belonging to business users to benefit the platform’s own competing offerings. To protect the participation of SMEs and HDP-owned firms, the Commission scrutinises differentiated trading terms, such as charging higher service fees or providing fewer marketing benefits to smaller businesses compared to global corporate entities. Finally, unfair treatment, such as imposing one-sided contracts, transferring disproportionate risks to sellers (like immediate customer reimbursements at the seller’s expense), or lacking clear dispute resolution mechanisms, is identified as conduct that exploits the dependency of smaller business users.

The draft Guidance Note for Online Intermediation Platforms can be accessed here.

Internal restructuring

The Commission’s final Guidelines on Internal Restructuring clarify that transactions occurring within a group of firms generally do not require notification if they are “purely internal”. A transaction is considered purely internal when it has no implications for the control rights of external shareholders – typically minority stakeholders who are not part of the primary group. A formal merger notification may still be required, however, if the restructuring results in a change, loss, or gain of negative control by these external parties. This includes any alteration to veto rights over strategic commercial decisions such as budgets, business plans, or the appointment of senior management. The Commission distinguishes these from ordinary minority investment protections, such as decisions regarding security listings or alterations to share capital, which do not typically confer control.

Ultimately, the Commission assesses these transactions on a case-by-case basis to determine if an alteration in the market structure has occurred.

The Guidelines on Internal Restructuring are accessible here.

Price-cost margin calculation

Lastly, the Commission has standardised the technical assessment of excessive pricing under Section 8(1)(a) through its price-cost margin calculation guidelines. To determine the actual price charged, the Commission adopts International Financial Reporting Standards (“IFRS 15”) revenue recognition principles, accounting for discounts, rebates, and business cycles. Operational costs are accurately classified as fixed, variable, or semi-variable, with a strong preference for actual costs used internally over those contrived for an investigation. The Commission will also scrutinise internal transfer pricing within groups of companies; if an input cost appears artificially inflated, they will prioritise the actual production cost of the entity producing that input. For calculating capital employed, the Commission prefers market values or depreciated replacement costs for tangible assets over simple book values. A “reasonable rate of return” is determined using the Weighted Average Cost of Capital (”WACC”), calculated via the Capital Asset Pricing Model (“CAPM”) to reflect the risk of the specific industry. This rigorous approach ensures that pricing assessments reflect economic reality rather than inflated accounting figures.

The Guidelines on Price-Cost Margin Calculations are accessible here.

COMESA Competition & Consumer Commission Clarifies New Regulations

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By Tyla Lee Coertzen and Holly Joubert

Introduction

On 13 January 2026, the newly renamed COMESA Competition and Consumer Commission (“CCCC”) issued its Practice Note 1 of 2026 (“Practice Note”), which is intended to provide legal clarification for businesses and legal communities regarding the newly approved COMESA Competition and Consumer Protection Regulations of 2025 (“2025 Regulations”).

By addressing common points of confusion, such as clarification on the commencement of the 2025 Regulations, merger thresholds in respect of transactions in digital markets, and the CCCC’s ability to grant derogations from its suspensory regime, the CCCC aims to ensure a uniform interpretation and a smooth transition to the 2025 Regulations and new suspensory merger regime.

  1. The effective date and “in-flight” transactions

One of the main objectives of the practice note was to correct a previous administrative error regarding the implementation date of the new regime. The CCCC clarified that the effective date of the 2025 Regulations is 4 December 2025, the same date the 2025 Regulations were approved by the COMESA Council of Ministers.

For merger transactions signed shortly before the enforcement of the 2025 Regulations, but were not yet notified or closed, the CCCC has set a clear boundary stating that any matter not under assessment by the CCCC by 4December 2025 will be governed by the 2025 Regulations. Contrarily, any matters instituted before 4 December 2025 and currently under the CCCC’s review will continue to be managed under the repealed 2004 Regulations to ensure procedural continuity.

  • Strict adherence to the new suspensory regime

The Practice Note emphasises and enforces the CCCC’s new suspensory regime, requiring notifiable transactions to be approved by the CCCC before they may be implemented.

While the 2025 Regulations allow for derogations where parties may apply to implement transactions prior to obtaining approval, the CCCC emphasises that such derogations will be granted sparingly and only in exceptional circumstances.

The CCCC, however, clarifies that while there is no longer a deadline by which a transaction must be notified to the CCCC, there are no derogations afforded to the notification requirements themselves. This ensures that all notifiable mergers must be notified prior to implementation.

  • Transactions in digital markets

To ensure the CCCC keeps pace with the rapid development of antitrust enforcement in digital markets, the 2025 Regulations have introduced a specific digital-transaction value threshold in an attempt to regulate big tech.

Under the 2025 Regulations, a transaction involved in digital markets is required to be notified should:

  1. the worldwide value of the transaction reaches over COM$250 million (US$250 million); and
  2. at least one party operates in two or more Member States.
  • Notification requirements in respect of Joint Ventures

When considering the notification requirements and thresholds in respect of a joint venture (“JV”), the CCCC has emphasised that the 2025 Regulations will only apply to JVs that have the intention of performing on a lasting basis all the functions of an autonomous economic entity (commonly referred to as full-function JVs).

A keynote emphasised by the Practice Note is the definition of a “lasting basis”, emphasising that a JV is not subject to notification if the parties to the JV do not have the intention of operating within the COMESA region within the next three years or, once established, operating for a period of three years or more.

  • Extension of merger assessments to non-competition factors

Although the CCCC considers public interest factors under the 2025 Regulations, the Practice Note has clarified that the competition concerns of a transaction carry the most weight in its investigation.

The CCCC priorities ensure that in the future, it is unlikely for the Commission to reject a co-competitive merger based on negative public interest. This is just as a merger that may significantly lessen a competitive market will not be more heavily considered based on the benefits of the public interest.

John Oxenham, director at Primerio International, notes that “ultimately, while the effects of the 2025 Regulations and Practice Note remain to be seen in practice, the Practice Note acts as a helpful road map for navigating the new aspects of the 2025 Regulations.” His colleague Andreas Stargard observes that the latest Practice Note is “not substantive in any significant way, but truly sticks to the theme of mere ‘clarification’ of the existing new 2025 Regs.  Deadlines and time calculations are explained in more detail than in the statute — but not altered — and value thresholds for digital transactions are clarified (again, without substantively modifying the text as found in the new law).  They are basic practice pointers, no more and no less.”

The Evolution of ECOWAS Merger Control: A Review of ERCA’s Latest Approvals

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By Simone dos Santos and Megan Armstrong

Throughout November 2025, ERCA has examined and approved four merger transactions in Liberia. Liberia is a Member State of the Economic Community of West African States (“ECOWAS”), which was established in 1975 when the Heads of State and Heads of Government of fifteen Western African Countries signed the ECOWAS Treaty. As of 29 January 2025, Burkina Faso, Mali, and Niger officially withdrew from ECOWAS. The current Member States of ECOWAS include Benin, Cabo Verde, Côte d’Ivoire, The Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Nigeria, Sierra Leone, Sénégal, and Togo; the headquarters of ECOWAS is in Abuja, Nigeria. The aim of ECOWAS is to promote cooperation and integration among Member States in order to raise the standard of living, maintain economic stability, foster relations, and contribute to the development of Africa.

Article 26(3)(a) ECOWAS Treaty sets out the priority sectors of the economy of Member States which include Food and Agriculture Industries, Building and Constructions Industries, Metallurgical Industries, Mechanics Industries, Electrical, Electronic and Computers Industries, Pharmaceutical, Chemical and Petrochemical Industries, Forestry Industries, Energy Industries, Textile and Leather Industries and the Transport and Communications Industries

In each of these sectors, there are mergers and acquisitions that take place, which are regulated by the ECOWAS Regional Competition Authority (“ERCA”).  ERCAS merger control regime became operational on 1 October 2024, and for any merger and acquisition that takes place, a notification must be submitted to ERCA for prior authorisation (See: Regulation C/REG.23/12/21). The four recent merger approvals centred around the following priority sectors: Mechanics Industries, Food and Agriculture Industries, as well as one of the Treaty’s aims, which is to ensure harmonisation in terms of education. The decisions have been made as follows:

ACQUISITION OF IVECO GROUP N.V. BY TATA MOTORS LIMITED COMMERCIAL VEHICLE HOLDINGS

On 19 August 2025, TML CV Holdings Ltd (“TMLCVH”), a company incorporated in Singapore, notified ERCA of its intention to acquire 100% of the shares issued in Iveco Group N.V., excluding its Defence Business Unit. The proposed merger would result in the full integration of both TMLCVH and Iveco Group N.V. commercial vehicles and powertrain divisions under the control of Tata Motors Limited. They are formally known as TML Commercial Vehicles Limited. The relevant market definition in this decision is the “global design, production and distribution of commercial vehicles (trucks and buses), as well as the supply of engines and related components to end customers and third-party manufacturers (OEMs).” The ERCA Council concluded that the merger is unlikely to reduce competition and the acquisition is authorised unconditionally, effective from 3 November 2025.

ACQUISITION OF TOYOTA GHANA LIMITED COMPANY (TGLC) BY TOYOTA TSUSHO MANUFACTURING GHANA CO. LIMITED (TTMG)

On 29 August 2025, Toyota Tshusho Manufacturing Ghana Co. Limited (“TTMG”) and Toyota Ghana Limited Company (“TGLC”) notified ERCA of TTMG’s intention to acquire the distribution business, assets, and operations of TGLC. The relevant market definition includes “new passenger cars, commercial vehicles such as buses and trucks, and the spare parts and after-sale services.” The ERCA Council concluded that the merger is unlikely to reduce competition and it promotes local industrialisation and regional trade integration. Additionally, it provides benefits to consumers as the service standards have been improved. The ERCA Council authorised this acquisition as unconditional. Despite the overlap in segments, the combined market share remains below the dominance threshold (Article 11 of the ERCA Manual on Market Dominance Thresholds). The authorisation of this acquisition is effective from 4 November 2025.

ACQUISITION OF HONORIS HOLDING LIMITED BY K2025283350 (SOUTH AFRICA) PROPRIETARY LIMITED (SA BIDCO), JOINTLY CONTROLLED BY OMPE SPV AND MANGRO HOLDINGS PROPRIETARY LIMITED

On 4 September 2025, SA BidCo notified ERCA of its intention to acquire 100% of the share capital of Honoris Holding Limited (“HHL”). After the merger, SA BidCo will be jointly controlled by an entity of the Old Mutual Group, OMPE SPV, as well as Mangro Holdings Proprietary Limited. This merger furthermore forms part of a broader restructuring and investment initiative led by Old Mutual Private Equity. The relevant market definition in this decision related to the “provision of private higher (tertiary) education services, including foundation-level preparatory programmes”. The ERCA Council concluded that the merger is unlikely to reduce competition and is expected to improve capacity, attract investment, and enhance the quality of education in Nigeria. The acquisition of HHL was authorised as unconditional and effective as from 6 November 2025.

ACQUISITION OF SIERRA LEONE BREWERY LIMITED BY AFRICAN BOTTLING GROUP ABG LIMITED

On 12 September 2025, African Bottling Group ABG Limited notified ERCA of its intention to acquire 98.07% of the share capital of Sierra Leone Brewery Limited (“SLBL”). This share capital was previously held by Heineken International B. The aim of this acquisition is to integrate SLBL’s brewing operations and distribution network into ABG’s beverage operations across the ECOWAS Member States. The relevant market definition in this decision is the “production and distribution of alcoholic and non-alcoholic beverages”. In this instance, this includes beer, other alcoholic beverages including beer, malt-based non-alcoholic beverages and carbonated soft drinks, juices or energy drinks. The ERCA Council concluded that the merger may lead to enhanced production efficiency, quality, and provide potential benefits to consumers. This merger is unlikely to reduce competition, however, it may moderately impact competition in Sierra Leone negatively. It is possible for this impact to be mitigated through appropriate remedies and therefore the Council concluded that the merger be authorised, subject to certain conditions, and is effective from 6 November 2025.

These four merger approvals highlight the Executive Directorate and Councils’ continuous effort to clear the docket before the end of 2025. In addition, the ERCA Council took this opportunity to visit Liberia’s Minister for Commerce and Industry to follow up on the progress of Liberia’s new Competition and Consumer Protection Bill. AAT looks forward to seeing developments and merger approvals made by the ERCA Council in 2026.

Malawi: More than CCCC HQ. A short Retrospective on Mergers in Malawi.

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Updated Malawi Merger Control Thresholds

By Michael Williams

Malawi’s new Competition and Fair Trading Act came into effect in 2024 (“2024 Act”).[1]  While this lags behind one of the best-known competition authorities in Malawi, namely COMESA’s Competition and Consumer Protection Commission (“CCCC”) headquartered in Lilongwe to the tune of over a decade, the domestic antitrust regime is being reinforced, as this legislative update shows. And with this latest edition, it is firmly in place when it comes to those national merger-control matters that escape the one-stop-shop of the CCCC. The Competition and Fair Trading Commission of Malawi (“CFTC”) stated that the goal of the 2024 Act is to:

  1. supplement certain areas that the previous Act lacked; and
  2. improving effective enforcement.

Several notable changes were included in the 2024 Act, particularly in respect of the introduction of a suspensory merger control regime. 

The 2024 Act also introduces a public interest test that the CFTC must apply when evaluating whether a proposed merger can or cannot be justified. This public interest test includes several factors including the effect of the potential transaction on:

  • specific industrial sectors or regions; 
  • employment levels; and 
  • the saving of a failing firm.

The CFTC has also been granted the power to impose administrative orders on parties who violate the 2024 Act, which include administrative penalties of up to 10% of a firm’s annual turnover or 5% of an individual’s income. 

The CFTC can also levy orders to redress wrongdoing, such as instructing refunds, exchange or return of defective products, and termination of unfair and exploitative contracts.

These increased powers come after the High Court of Malawi Civil Division ruled in the 2023 case of CFTC v Airtel Malawi that the CFTC lacked the authority to impose fines under the 1998 Act.[2]

To supplement the 2024 Act, the Minister recently published a Government Notice[3] that provides for the financial thresholds for mandatory merger notifications as well as an overview of other fees payable to the CFTC.

THE FINANCIAL THRESHOLDS FOR MANDATORY MERGER NOTIFICATIONS

Any transaction exceeding the following financial threshold will require prior approval from the CFTC before implementing:

  1. The combined annual turnover or combined value of assets whichever is higher, in, into, or from Malawi, equals to or exceeds MWK 10 billion (approximately USD 5 800 000); or
  2. The annual turnover of a target undertaking, in, into, or from Malawi, equals to or exceeds MWK 5 billion (approximately USD 3 000 000).

FEES PAYABLE TO CFTC FOR COMPETITION FILINGS 

The Government Notice sets the merger application fee payable at 0.5% of the combined annual turnover or total assets whichever is higher of the merging parties derived from Malawi. It is important to note that the Government Notice does not specify a maximum fee payable.

OTHER FEES PAYABLE TO THE CFTC

  1. Application for an Authorization of an Agreement at MWK 10 million (approximately USD 5 800) an agreement, a class of agreements under section 24(1) of the 2024 Act or an agreement which, any person who proposes to enter into, or carry out an agreement which, in that person’s opinion, is an agreement affected or prohibited by the 2024 Act. Importantly, an ‘agreement’ is defined in the 2024 Act, being: “any agreement, arrangement or understanding, whether oral or in writing, or whether or not the agreement is legally enforceable or is intended to be legally enforceable”
  2. Application for Negative Clearance at MWK 10 million (approximately USD 5 749,49) for any party to a merger transaction seeking clarification as to whether the proposed merger requires the formal approval of the CFTC or whose proposed merger is subject to review by the CFTC.
  3. Training on Competition & Consumer Protection at MWK 5 million per training package (approximately USD 3 000);
  4. Non-Binding Advisory Opinions for SMEs: MWK 200 000,00 (approximately USD 115); Micro-enterprises: MWK 100 000,00 (approximately USD 58); Other businesses: MWK 500 000,00 (approximately USD 300).

CONCLUSION

This supplementation by the Government Notice to the 2024 Act is of utmost importance for businesses and competition law practitioners operating within the jurisdiction of Malawi to ensure smooth transactions and to avoid statutory sanctions.

[1] Competition and Fair Trading Act No. 20 of 2024

[2] Competition and Fair Trading Commission v Airtel Malawi Ltd. & Anor. (MSCA Civil Appeal 23 of 2014) [2018] MWSC 3

[3] Government Notices No. 76 and No. 77 of 2024

Have Confidential Info? Follow the Guidelines…

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South African Competition Commission Releases Draft Guidelines on Handling Confidential Information

By Olivia Sousa Holl

Introduction

On 3 February 2024, the Competition Commission of South Africa (“Commission”) released draft guidelines (“Guidelines”) that govern the handling of confidential information, the access thereto and the disclosure of such. The investigative and adjudicative powers granted to the competition authorities in South Africa, enable the frequent handling of sensitive business information. Some have raised concerns regarding overly broad confidentiality claims that hinder the Commission’s ability to conduct investigations in a transparent and efficient manner. These guidelines seek to strike a balance between protecting commercially sensitive data while ensuring fairness, transparency, and public engagement with Competition Authorities’ decisions and reasons which form the basis of competition law jurisprudence.

These guidelines intend to provide clarity on how firms and individuals can claim confidentiality over submitted information and how the Commission will assess such claims. They also establish a framework for determining who may access confidential information and under what conditions. The guidelines discourage excessive redaction, and blanket confidentiality claims that obstruct legal proceedings and prevent meaningful participation by affected parties, such as trade unions and public interest groups. Ultimately, aiming to ensure that competition law processes continue to uphold principles of fairness and procedural justice.

The Competition Act No. 89 of 1998 (“Act”) defines what constitutes confidential information, as “trade, business, or individual information that belongs to a firm, has a particular economic value, and is not generally available to or known by others” in section 1(1)(vii).

The Guidelines emphasise that all three criteria must be met for a confidentiality claim to be valid. According to section 44(1)(b) of the Act, a confidentiality claim must be supported by a written statement explaining why the information is confidential. The guidelines further emphasise that overly broad claims will not be accepted and that firms must justify their claims with specific reasons.

In the Guidelines, the Commission has identified that which is considered to generally constitute confidential information, such as, trade secrets, pricing strategies, financial records of unlisted firms, and internal business strategy documents. The Guidelines then go on to state that information such as that which is publicly available, financial statements, shareholding structures, product descriptions, and industry-wide historical data are unlikely to qualify for confidentiality protection.

Claiming Confidentiality: The Form CC7 Process

Section 44(4) of the Act mandates that firms submit both a confidential and non-confidential version of their submissions. Failure to submit a Form CC7 with a written justification may result in the Commission rejecting the confidentiality claim. Once a confidentiality claim has been made, as per section 44(2) of the Act, the Commission must treat the information as confidential until a final determination is reached.

To claim confidentiality, firms must submit a Form CC7, which require:

  1. Identification of the confidential information, including the document name, page, and line number.
  2. A justification for why the information qualifies as confidential, explaining its economic value and how disclosure would cause harm.
  3. Details of existing access restrictions, specifying who currently has access to the information and under what conditions.

Balancing confidentiality and fairness

While the guidelines reinforce the importance of protecting genuinely sensitive information, they also stress the need to balance confidentiality with fairness in competition law proceedings. Various regimes of access to confidential information are outlined, depending on the role and interests of the requesting party.

In most cases, confidential information may be shared with a requesting party’s external legal representatives and economic experts, provided they sign a strict confidentiality undertaking. Section 44(9) explicitly permits the “disclosure of confidential information to the independent legal representatives and economic advisors of a person requesting access, in a manner determined by the circumstances and subject to appropriate confidentiality undertakings, is an appropriate determination concerning access”. (Competition Act)

This access regime ensures that merger parties, respondents, and intervenors can engage meaningfully in legal proceedings without direct access to their competitor’s sensitive business data.

Access by public officials and third parties

The guidelines also address access to confidential information by public officials and third parties. The Minister of Trade, Industry, and Competition has a statutory right to access confidential information in merger proceedings, as provided for in Section 45(3)(a) of the Act. Trade unions and employee representatives must also be given sufficient access to merger-related documents to participate meaningfully in Tribunal hearings.

Public Interest

The guidelines acknowledge the public interest in access to competition law decisions. Warning against excessive redaction, which can undermine transparency and legal precedent. In market inquiries, firms are prohibited from claiming confidentiality over an entire submission, instead it should provide a redacted public version of documents within five days of filing confidential submissions.

If the Commission rejects a confidentiality claim, the claimant has the right to appeal the decision to the Competition Tribunal under Section 45(1) of the Act. If dissatisfied with the Tribunal’s ruling, they may further appeal to the Competition Appeal Court (“CAC”) under Section 45(2) of the Act.

In resolving confidentiality disputes, the Tribunal applies a balancing test that considers:

  • The right to a fair hearing (ensuring parties can properly engage with evidence).
  • The need to protect confidential business interests.
  • The public interest in transparency and competition law enforcement.

The guidelines reinforce that the default position is disclosure, particularly for independent legal advisors, and that confidentiality claims must be well-founded

The Commission also confirms that the unauthorised disclosure of confidential information is a violation of the Act. However, it emphasises that these guidelines are intended to improve transparency and procedural fairness while maintaining robust protections for sensitive business information. The Commission reserves the right to amend the guidelines periodically based on legal developments, stakeholder feedback, and international best practices in competition law enforcement.

Public comment

The Competition Commission invites public comments on the draft guidelines, with written submissions due before 3 March 2025. These guidelines represent a significant step toward improving transparency, procedural fairness, and public access to competition law decisions while maintaining necessary protections for business confidentiality.

COMESA clarifies merger procedure

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COMESA Competition Commission’s Revised Guidance Note provides much-needed clarity to parties in avoiding fines for late merger notifications

By Tyla Lee Coertzen

On 20 February 2023, the COMESA Competition Commission (“CCC”) published its “Revised Guidance on Engagement with the COMESA Competition Commission on Merger Filings”[1] (“Revised Guidance Note”), replacing the “Notice of Interim Measures in Merger Review of the COMESA Competition Commission due to the COVID-19 Pandemic”[2] (“Interim Measures Note”).

As per Article 24(1) of the CCC’s Competition Regulations, merging parties must notify proposed transactions to the CCC within 30 days of a ‘decision to merge’. The CCC’s Merger Assessment Guidelines further describe a ‘decision to merge’ to either be:

  • a joint decision taken by the merging parties and so comprise of the conclusion of a definitive, legally binding agreement to carry out the merger (which may or may not be subject to conditions precedent); or
  • the announcement of a public bid in the case of publicly traded securities.

Where merging parties do not provide the CCC with a notification within the above specified time, they are at risk to penalties of up to 10% of the merging parties’ combined turnover in the Common Market.[3] In contemplation of a fine, the CCC will consider the following factors for purposes of determining an appropriate penalty:

  • the nature, duration, gravity and extent of the contravention;
  • any loss or damage suffered as a result of the contravention;
  • the behaviour of the parties concerned;
  • the market circumstances in which the contravention took place;
  • the level of benefits derived from the contravention;
  • the degree to which the parties have co-operated with the CCC; and
  • whether the parties have previously been found in contravention of the CCC’s Competition Regulations.

Where the CCC has found parties to have contravened this Article, the CCC has imposed penalties of 0,05% of the merging parties’ combined turnover in the Common Market. However, where parties derive large turnovers in a number of COMESA Member States, even the lower end of the threshold could result in a hefty fine.

The above provisions have caused uncertainty and adverse effects against companies involved in lengthy deal negotiations and execution of large multinational mergers and acquisitions. Often, preparing a merger notification within 30 days of initial decisions to merge places results in large administrative burdens on merging parties who may meet the requirements of a ‘decision to merge’ even before the drafting or execution of important agreements relating to the merger.

The Interim Measures Note was published during the Covid-19 pandemic as a result of uncertainties relating to the timing of merger notifications submitted to the CCC upon recognition of “unprecedented, uncertain and challenging times.” The Interim Measures Note allowed for a relaxation of various rules related to merger notifications to the CCC, such as an allowance for parties to deliver hard copies of their filings after the prescribed 7-day period.

The Interim Measures Note provided guidance to parties who, as a result of the uncertainty posed by the pandemic, were unable to provide a complete notification to the CCC within the 30-day period as required by Article 24(1). In this regard, the CCC allowed parties to proactively engage with it during the 30-day period at the beginning of the merger notification process. Thereafter, the CCC would consider the filing complete after all information required is submitted. The Interim Measures Note provided 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.”

However, the Interim Measures Note seemingly only applied during the ‘temporal period’ where the Covid-19 pandemic was rife.

As a result of the relaxation of Covid lockdown regulations and restrictions worldwide, the CCC has now provided further guidance on parties’ options where merging parties are unable to provide the CCC with a complete filing within the strict 30 day time period.

The Revised Guidance Note replaces and overrides the Interim Measures Notice released in 2020. The Revised Guidance Note recognised that in relation to the approach it took for Article 24(1) prohibitions, the Interim Measures Notice was “widely utilized by merging parties” and that the ‘initial engagement approach’ adopted by the CCC had proven “beneficial for both merging parties and for the CCC in monitoring non-compliance with Article 24(1) of the Regulations.”

As a result of the above, the Revised Guidance Note confirms that the CCC will maintain the ‘initial engagement’ approach until further notice and possible amendment to the Competition Regulations. As such, where parties are uncertain as to the conclusion of a proposed transaction within the strict timer period and fear being penalised for an Article 24(1) contravention as a result, they are advised to engage the CCC on the notification process within the 30-day period and shall therefore avoid being penalised. Importantly, the Revised Guidance Note provides that this approach will not apply where there are “unreasonable and unexplained delays in the parties’ submission of a complete notification.”

The Revised Guidance Note provides useful direction to parties who are engaging in proposed transactions within the Common Market and certainly provides clarity on how merging parties who are in good faith unable to provide a complete merger notification within the period prescribed by the CCC may prevent a fine for non-compliance of Article 24(1).

[1] CCC-Notice-2-of-2023.

[2] CCC-Notice-4-of-2020.

[3] Namely, the COMESA Member States, which comprise of the following jurisdictions: Burundi, Comoros, Democratic Republic of the Congo, Djibouti, Egypt, Eswatini, Eritrea, Ethiopia, Kenya, Libya, Madagascar, Malawi, Mauritius, Rwanda, Seychelles, Somalia, Sudan, Tunisia, Uganda, Zambia, and Zimbabwe.

Breaking: CCC withdraws its recent Merger Practice Note

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An AAT-exclusive first report on this — somewhat stunning — development follows below. More details to be published once they become available in a new post…

On August 8th, 2022, the CCC officially announced the formal withdrawal of its Practice Note No. 1 of 2021, which had clarified what it meant for a party to “operate” in the COMESA common market. The announcement mentions that it will (soon? how soon?) be replaced with a revised Practice Note — a somewhat unusual step, in our view, as the revised document could have, or should have, been published simultaneously with the withdrawal of the old one. Otherwise, in the “interim of the void,” legal practitioners and commercial parties evaluating M&A ramifications in the COMESA region will be left with no additional guidance outside the bloc’s basic Competition Regulations and Rules.

Of note, “this clarifying policy document did not stem from the era of Dr. Mwemba’s predecessor (CCC 1.0 as we are wont to call it), but it was already released under Willard’s aegis as then-interim director of the agency,” observes Andreas Stargard, a competition lawyer at Primerio Ltd. He continues: “Therefore, we cannot ascribe this most recent abdication to a change in personnel or agency-leadership philosophy, but rather external factors, such as — perhaps — the apparently numerous inquiries the CCC still received even after implementation of the Note.”

To remind our readers, we had previously reported on AAT as to this (now rescinded) note as follows (Feb. 11, 2021):

The COMESA Competition Commission (“CCC”) issued new guidance today in relation to its application of previously ambiguous and potentially self-contradictory merger-notification rules under the supra-national COMESA regime. As Andreas Stargard, a competition practitioner with Primerio notes:

“This new Practice Note issued by Dr. Mwemba is an extremely welcome step in clarifying when to notify M&A deals to the COMESA authorities. Specifically, it clears up the confusion as to the meaning of the term ‘to operate’ within the Common Market.

Prior conflicts between the 3 operative documents (the ‘Rules’, ‘Guidelines’, and the ‘Regulations’) had become untenable for practitioners to continue without clear guidance from the CCC, which we have now received. I applaud the Commission for taking this important step in the right direction, aligning its merger procedure with the principles of established best-practice jurisdictions such as the European Union.”

M&A Breaking News: Regional Antitrust Enforcer Aligns Merger Rule with European Union Principles

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BREAKING NEWS: The COMESA Competition Commission (“CCC”) issued new guidance today in relation to its application of previously ambiguous and potentially self-contradictory merger-notification rules under the supra-national COMESA regime. As Andreas Stargard, a competition practitioner with Primerio notes:

“This new Practice Note issued by Dr. Mwemba is an extremely welcome step in clarifying when to notify M&A deals to the COMESA authorities. Specifically, it clears up the confusion as to the meaning of the term ‘to operate’ within the Common Market.

Prior conflicts between the 3 operative documents (the ‘Rules’, ‘Guidelines’, and the ‘Regulations’) had become untenable for practitioners to continue without clear guidance from the CCC, which we have now received. I applaud the Commission for taking this important step in the right direction, aligning its merger procedure with the principles of established best-practice jurisdictions such as the European Union.”

The full text of the new Guidance is as follows:

PRACTICE NOTE ON THE COMMISSION’S APPLICATION OF THE TERM “OPERATE” UNDER THE COMESA COMPETITION REGULATIONS AND THE “APPLICATION OF RULE 4 OF THE RULES ON THE DETERMINATION OF MERGER NOTIFICATION THRESHOLDS AND METHOD OF CALCULATION”

February 11, 2021

CCC – MER – Practice Note 1 of 2021

The COMESA Competition Commission (the “Commission”), having received several queries from merging parties and their legal representatives in relation to the application of certain merger control rules, hereby issues this practice note on its application of the term “operate” under the COMESA Competition Regulations, 2004 (the “Regulations”) and the COMESA Competition Rules, 2004 (the “Rules”) and its approach to the application of Rule 4 of the Rules on the Determination of Merger Notification Thresholds and Method of Calculation (the “Rules on the Determination of Merger Notification Thresholds”).

  1. Application of the Term “Operate”

Article 23 of the Regulations establishes the jurisdiction of the Commission to assess cross-border mergers where the term “operate” is central to the application of Article 23 of the Regulations which, inter alia, applies where “…both the acquiring firm and target firm or either the acquiring firm or target firm operate in two or more Member States…”.

The Regulations have not defined the term operate. However, paragraph 3.9 of the COMESA Merger Assessment Guidelines of 2014 (the “Merger Guidelines”) states that an undertaking is considered to operate in a Member State for purposes of Article 23 (3)(a) of the Regulations if its operations in that Member State are substantial enough that a merger can contribute to an appreciable effect on trade between Member States and restrict competition in COMESA. Further, the Merger Guidelines state that “…an undertaking operates in a Member State if its annual turnover or value of assets in that Member State exceeds US$ 5 million…”.

It should be noted that at the time the Merger Guidelines became applicable, the prescribed merger notification thresholds envisaged under Article 23(3)(b) of the Regulation, were set at US$ 0. This effectively meant that all merger transactions satisfying the regional dimension requirement of Article 23 (3)(a) of the Regulations were required to be notified to the Commission, irrespective of the magnitude of the merging parties’ operations in the Common Market. In line with the Regulations’ objectives, the Commission sought to only capture those mergers likely to affect trade between Member States and restrict competition in the Common Market. As a result, the Merger Guidelines attached a quantitative definition to the term ‘operate’, as meaning the turnover or value of asset in a Member State to be at least US$ 5 million.

All stakeholders are hereby informed that following the enactment of the Rules on the Determination of Merger Notification Thresholds, the definition of ‘operate’ under paragraph 3.9 of the Merger Guidelines in no longer applicable as the Rules take precedence over the Guidelines. In view of this, paragraph 3.9 of the Guidelines has been rendered ineffective with the coming into force of Rule 4 of the Rules on the Determination of Merger Notification Thresholds. Therefore, for purposes of merger notification in line with Article 23 of the Regulations, all stakeholders should be referring to Rule 4 of the Rules on the Determination of Merger Notification Thresholds which stipulates that:

 “Any merger where both the acquiring firm and target firm, or either the acquiring or the target firm, operate in two or more Member States, shall be notifiable if:

  1. the combined annual turnover or combined value of assets, whichever is higher in the Common Market of all parties to a merger equals to or exceeds US$50 million; and
  2. the annual turnover or value of assets, whichever is higher, in the Common Market of each of at least two of the parties to a merger equals or exceeds US$10 million, unless each of the parties to a merger achieves at least two-thirds of its aggregate turnover or assets in the Common Market within one and the same Member State.”

 2.  Application of Rule 4 of the Rules on the Determination of Merger Notification Thresholds

Rule 4 applies to merger transactions that satisfy both the “Regional Dimension” and “Notification Thresholds” requirements under Article 23 of the Regulations. Rule 4 is cumulative and must be satisfied entirely before a merger is notified to the Commission. Rule 4 is therefore applied as follows:

Firstly, Regional Dimension must be satisfied. This is contained in the chapeau of Rule 4 which requires the merging parties to operate in at least two COMESA Member States. Further, it gives three alternative scenarios under which merging parties can operate in Member States namely:

  1. Both the acquiring firm and target firm can operate in at least two Member States;
  2. The acquiring firm can operate in at least two Member States, while the target firm can operate only in one Member State; or
  3. The target firm can operate in at least two Member States, while the acquiring firm can operate only in one Member State.

Regional Dimension will therefore be met once any of the three scenarios is satisfied and if they are, the next step is to confirm whether Rule 4(a) is satisfied. Rule 4(a) must be satisfied by confirming that either the combined annual turnover or combined annual assets in the Common Market of all the parties to the merger equals to at least US$ 50 million. The option to use combined annual turnover or combined annual asset shall depend on the higher amount of the two total values.

Assuming the Regional Dimension and Rule 4(a) is satisfied, the next step is to confirm whether the merging parties satisfy Rule 4(b). To satisfy Rule 4(b), it should be demonstrated that the annual turnover or annual asset, whichever is higher, of each of at least two of the parties in the Common Market is at least US$ 10 million. Whether to use annual turnover or annual asset depends on the higher of the two. It should also depend on the measure (turnover or asset) used in Rule 4(a).

As an illustration, assume annual combined turnover is higher than annual combined asset under Rule 4(a). This shall mean annual combined turnover will be adopted under Rule 4(a). Therefore, proceeding to Rule 4(b) shall mean confirming whether the annual turnover of each of at least two of the parties in the Common Market is at least US$ 10 million.

The final step in applying Rule 4 is to confirm if the 2/3 exemption rule holds. Given that Rule 4 must be applied in its entirety, the 2/3 exemption rule must also be read in conjunction with the preceding limbs in establishing the thresholds i.e. Rule 4(a) and Rule 4(b). For both the collective and individual thresholds requirements under Rule 4(a) and 4(b), it is the higher value of the turnover derived or asset value held which must be considered. In this regard, the 2/3 rule is meant to apply once the higher value has been established. It would be contrary to the principles and spirit of the 2/3 rule to rely on a different financial criterion to exempt a notification than the criterion used to establish a notification requirement under first two limbs of Rule 4.

Plus ça change… Merging parties should continue as before in Nigeria

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FCCPA in effect – but not quite, as FCCPC not yet fully operational

As AAT reported previously, the landmark Federal Competition & Consumer Protection Act (FCCPA) that suddenly went into effect in Nigeria earlier this year has not quite been operationalised.  Notably, the agency that is supposed to be tasked with enforcing the FCCPA, the Federal Competition & Consumer Protection Commission (FCCPC) is currently “undergoing construction”, so-to-speak.  An African competition-law practitioner with Primerio notes that “apparently there has been some political wrangling around the constituents of the FCCPC’s Board,” which is unsurprising, to say the least.  One might be inclined to say, Plus ça change, plus c’est la même chose…, as politics has always played a major role in Nigerian enforcement.

That said, the AAT editor does understand that, at a minimum, the Director General of the existing Consumer Protection Council, Babatunde Irukera, will serve in some capacity with the FCCPC — it is unknown whether the remaining 5 CPC commissioners will likewise continue to act for the FCCPC or not.  (Screenshots of his Twitter account below, indicating a full-blown transition from the CPC to the FCCPC).

One indication of the lack of the FCCPC’s operational status when it comes to mergers is that its web site (presumably soon to be http://fccpc.gov.ng/) still yields an error message.  Another is a recent joint statement issued by the SEC and its yet-to-be-established counterpart, which provides in relevant part as follows:

In order to ensure continuing and seamless commercial transactions and market operations, SEC and FCCPC have come to a mutual understanding with respect to these transactions within the transition period, which pursuant to this notice commences immediately, and shall remain in force until otherwise discontinued by further Advisory or Guidance.

During this transition period, starting today, May 3rd, 2019:

  • All notifications or fillings will be reviewed under existing SEC Regulations, Guidelines and Fees.
  • Notifications will be filed at FCCPC OR SEC/FCCPC Interim Joint Merger Review Desk at SEC.
  • All applicable fees will be paid to the FCCPC.
  • SEC and FCCPC will jointly review notifications and FCCPC will convey decisions with respect to the notifications.

Notifications previously received by SEC, but yet to be decided, will be subject to the interim process above and FCCPC will convey the decisions accordingly.

We will update AAT’s readership with new intel as soon as it becomes available.  For the time being, the status quo remains largely intact.  Says Andreas Stargard, an antitrust practitioner:

“For now, merger parties should proceed as before, namely: analyse your transaction under the Investment & Securities Act (ISA), and file with either the SEC or the FCCPC — some advise to file with the SEC for the time being, if applicable, as the lack of full operational status of the FCCPC does not bode well for procedural thoroughness or guaranteed document retention in this early phase.  That said, if your transaction has a longer time horizon, with closing potentially several months down the road, your counsel should take into account the very real possibility of there being a notification under the FCCPA, even if none was required under the ISA.  I expect the FCCPC to set merger notification thresholds very soon.”

Osayomwanbor Bob Enofe, an academic and proponent of the Nigerian competition law notes, however, that the current interim arrangement “only suggests to me that the SEC currently leads, concerning merger enforcement in Nigeria, rather than clarifying that the FCCPC is not existent (especially given the transitional period established by the two Commissions).”  He continues: “The erstwhile CPC might be revamped to reflect a more competition-law cognisant staff base,” noting that “various competition law offences now exist in Nigeria,” of which cartel conduct is punishable not only my monetary fines but also criminally under the FCCPA.