Category: mergers

Prohibiting a Merger Long in the Making: CCC’s First M&A Prohibition

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The COMESA Competition Commission Issues Its First Partial Refusal to Grant Merging Parties Permission to Consummate Merger

By Tyla Lee Coertzen

On 2 September 2023, the COMESA Competition Commission released its decision to prohibit the proposed acquisition by Akzo Nobel N.V (“AkzoNobel”) of Kansai Plascon East Africa Proprietary Limited (“KPEA”) and Kansai Plascon Africa Limited (“KPAL”) (the “Target Firms”). The CCC’s decision in this merger represents the first merger prohibition it has issued since its inception in 2013.

In terms of the proposed acquisition, AkzoNobel was set to acquire 83.31% of the issued share capital of KPAL and 100% of the issued share capital of KPEA from Kansai Paint Co. Ltd.

AkzoNobel is a Dutch multinational company active in the manufacture and sale of paints and coatings, with a presence in Egypt, Mauritius, Tunisia and Zambia and Zambia. In addition, AkzoNobel supplies paints to the Democratic Republic of the Congo, Eswatini, Ethiopia, Kenya, Libya, Madagascar, Rwanda, Sudan and Zimbabwe.

The Target Firms are also active in the manufacture and supply of coating products. KPEA maintains a presence in Burundi, Kenya, Tanzania, Uganda and Zanzibar and operates five manufacturing plants, four of which are located within the Common Market (namely in Burundi, the Democratic Republic of the Congo, Malawi, Rwanda and Zambia). KPAL also has manufacturing plants in the Common Market, namely in Malawi, Zambia and Zimbabwe and derives turnover in Eswatini.

This would-be transaction has a somewhat convoluted history and was, by some observers’ interpretations, many years in the making.  As Andreas Stargard notes regarding our prior reporting, “this very publication has analysed the COMESA competition troubles of the merging paints makers of the recent past.  These have included failure-to-file mandatory notifications (and also here), as well as a paints cartel-conduct inquiry by the CCC, after Akzo and Kansai’s acquisitive hunger had initially begun in 2013 with disputes over use of the Sadolin brand in Uganda and elsewhere — coincidentally the same year the CCC became functional.”

In addition, notably, the same transaction was prohibited by the South African Competition Commission in late 2022 (which decision is currently being determined by the South African Competition Tribunal). The merger is also currently being assessed by the Namibian Competition Commission.

In its assessment of the market for the manufacture and supply of decorative paints, the CCC identified several competition concerns arising from the proposed merger. Specifically, it identified that the merger would result in a combination of two strong paint brands (namely Plascon and Dulux) and that there were no effective competitors present who would pose a real ability to counter the undue market power and unilateral conduct arising thereof.

While the merging parties proffered a number of commitments, the CCC found that such commitments would not sufficiently remedy the decrease in competition in the market (particularly in Eswatini, Zambia and Zimbabwe). The CCC thus outright prohibited the merger in these three Member States.

The CCC approved the merger in certain other jurisdictions subject to conditions proffered by the parties. Specifically, the parties are obliged to divest the Sadolin brand owned by AzkoNobel to an independent third-party competitor in Uganda within 6 months of the date of the CCC’s decision. In Malawi, the CCC approved the merger subject to a condition that the merging parties continue productions in the Malawi manufacturing plant for a period of three years after the CCC’s decision, in order to remedy the plant’s potential closure and job losses resulting thereof.

The CCC’s decision over this merger is a clear indication of the approach it will take to mergers which it believes will pose significant anti-competitive harm and competitive loss within the Common Market. Thus, the decision is an indication of CCC’s powers, adjudicative authority as well as its willingness to enforce its powers.

Competition Authority of Kenya exempts MSMEs from merger control provisions to stimulate economy

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Competition Authority adds exemptions to boost economic activity

By Joshua Eveleigh and Katia Lopes

In a recent speech by Kenya’s Minister of Finance, Professor Njuguna Ndung’u, it is clear that the Competition Authority of Kenya (“CAK”) will take active steps in promoting micro, small and medium-sized enterprises (“MSMEs”) in the local economy.

Firstly, to facilitate their growth and contribution, Professor Ndung’u, noted that government plans to ease the cost of doing business and to minimize compliance costs for MSMEs.  Specifically, the CAK will exempt MSMEs from having to notify otherwise mandatorily notifiable mergers to the CAK. By removing the significant regulatory hurdle of obtaining prior merger approval, and its associated costs, it is hoped that Kenya will see a promotion of start-up and digital businesses. This development is particularly important considering that Kenyan startups ranked second, in Africa, in terms of funding raised but fell behind other African jurisdictions when it came to acquisitions of MSMEs.  Fidel Mwaki, legal practitioner based in Nairobi, observes that “this is a positive move from the CAK that should hopefully bode well for MSME’s, many of whom are battling under the strain of increased taxation, inflation, and licensing requirements and will certainly benefit from the proposed waiver on merger notification fees.”  His Primerio colleague, attorney Diana Wariara, adds that “regulating buyer power remains a challenge for the agency.  A greater emphasis on audits and investigations may help strengthen the CAK’s enforcement mandate and ensure a level playing field and fair competitive practices within these sectors.”

In addition to merger exemptions and emphasising the CAK’s position as Eastern Africa’s lodestar in the enforcement of abuses of buyer power, the CAK will monitor and conduct surveillance audits, specifically in the manufacturing and agro-processing sectors, to further protect MSMEs from incidences of abuses of buyer power. Professor Ndung’u also noted that the CAK will implement codes of practice to ensure MSMEs in the retail and insurance sectors are protected from powerful buyers.

Lastly, Professor Ndung’u highlighted that the CAK will take measures to address the issues of price fixing by professional services, ensuring that fees and the quality of professional services remain competitive.

Given the pivotal role that MSMEs play in the Kenyan economy, comprising 98% of all local business entities and contributing approximately 24% of Kenya’s GDP, their promotion will be a welcome development among the local business community. In this respect, Professor Ndung’u’s speech demonstrates the CAK’s commitment towards ensuring a competitive marketplace that is free from abuses of dominance.

Breaking: COMESA expected to become suspensory merger regime by 2024

Posted on by andreasstargard

At today’s CCC Business Reporter Workshop, Senior M&A Analyst Sandya Booluck presented major plans to amend the regional trading bloc’s merger-control regime.

The most notable part of this “complete overhaul” of the CCC regime will be the likely change from the current non-suspensory to a suspensory merger notification scheme.

Says Primerio Ltd. antitrust counsel Andreas Stargard: “This change is, of course, still subject to approval by the CCC Board and the COMESA Secretariat Council of Ministers, but it is likely to pass in my personal opinion. This is especially true since, as former CCC Head Lipimile pointed out at today’s session, this change was in fact demanded by several of the NCAs of the COMESA member states, also in view of the Art. 24(8) referral procedure. It thus presumably enjoys broad support from the bloc’s leadership and will obtain a passing vote before the end of 2023!”

Ms. Sandya Booluck, Senior Analyst M&A

COMESA stats update: 367+ M&A deals, yielding a healthy revenue stream for the CCC’s operations

Posted on by andreasstargard

A brief note from the “front lines” of the COMESA Competition Commission’s 10-year anniversary event: Isaac Tausha, chief economist for research policy and advocacy, provides the following statistics — notably for the entire duration of the CCC’s life decade so far.

In short: Gone are the meager days of fledgling notifications to the CCC.

Statistics Since Inception

369 mergers and acquisitions assessed. (Total COMESA revenues of merging parties: US$210bn)

Over 40 Restrictive Business Practices assessed

Over 44 Consumer Protection cases handled

More than 12 market screenings and studies undertaken

3 businesses fined for non-compliance with the Regulations

Doing a “back of the envelope” estimate, we at AAT are calculating the total merger filing fees resulting from those 367 notified deals to be possibly north of $75 million $65 million, so on average $6.5m “income” for the CCC per year (half of which goes to the 21 member states, of course, under the Regulations). This is notably without taking into account fines, e.g., a recent $102,000+ fine for failure to notify (as in our reporting on the Helios Towers / Malawi case).

Dr. Chris Onyango (Dir. Trade, Customs and Monetary Affairs, COMESA)
Dr. Lipimile (former CCC CEO). Mary Gurure (Head of Legal, CCC). Andreas Stargard (Editor, AAT).

CCC Celebrates ’10’ — a Decade of COMESA Competition Law

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Anniversary of CCC’s 2013 Creation to be Celebrated, Developments Discussed

Next week, African heads of state, ministers of trade and commerce, the secretary general of the 21-member state COMESA organization, Commissioners, and several heads of various competition agencies across the region, from Egypt to Eswatini & from Mauritius to Malawi, will join antitrust practitioners, legal experts, business people, and journalists in celebrating the occasion of the 10-year anniversary of the COMESA Competition Commission in Lilongwe, where the agency is headquartered.

Of course, AAT will be there to cover it.

As leaders of this august publication will know by now, our authors have followed the development of the CCC since its very beginning: from the nascent stages of having only a rudimentary staff and foundational rule documents, lacking sufficient guidance for practitioners and businesses alike, to the significant developmental stage under its first chief executive officer, Dr. Lipimile, who built out his enforcement team to coincide with the stellar growth of the CCC’s “one-stop-shop” merger notification statistics and attendant agency reviews (hiring economists and lawyers alike from across COMESA member nations) — and culminating, so far at least, in what we have come to call “CCC 2.0”: the latest iteration of the vastly successful multi-jurisdictional antitrust body, now led by its long-term member Dr. Willard Mwemba.

Under Mwemba’s aegis, the Commission has advanced well beyond a mere ‘rubber-stamping’ merger review body, as some had perceived the fledgling agency in its very early years (approx. 2013-15). The triple-C has since then begun to launch serious investigations into price-fixing, monopolization, attempted monopolization, gun-jumping, as well as market allocation schemes and secretly implemented transactions that parties had failed to notify.

While ‘antitrust is on our minds’, we note here for the record that, beyond its “competition” ambit that mostly remains in our focus at AAT, the CCC’s enforcement mission also includes a fairly large “consumer protection” brief, and the agency’s dedicated unit has investigated areas of consumer concern as broad as airline practices, imported faulty American baby powder, online ‘dark’ practices, pay-TV, and agricultural product quality disputes (milk and sugar come to mind) between Uganda and Kenya, to name only a few…

Our publication, together with several of the business journals and newspapers across the southeastern region of Africa, will report in great detail on the events, and possible news, to take place next week. Says Andreas Stargard, a competition practitioner with Primerio International:

“I look forward to hearing from these leaders themselves what they have accomplished in 10 years, and more importantly what they wish to accomplish in the near to mid-term future. In addition, I have a feeling that we may be treated to some truly newsworthy developments: I could imagine there being either confirmation or denials of the circulating rumour that the COMESA merger regime will soon become not only mandatory, but also suspensory. As most attorneys practicing in this arena know by now, the current Competition Regulations are not suspensory, which may be deemed too restrictive by the group’s Secretariat and its agency leadership in terms of its enforcement powers. After all, it is much more difficult to unscramble the egg than to never let it drop in the pan from the get-go!

Also, the CCC may reveal its plans in relation to a leniency programme for cartel conduct, which is plainly in order!”

Beyond that, Stargard surmises, participants at the almost week-long event may be treated to news about the CCC’s thoughts on digital markets, sectoral investigations, and the Commission’s upcoming “beyond-mere-merger” enforcement activities.

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.

Egyptian merger control undergoes major revamping after 17 years

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By Rostom Omar, Esq. (Primerio Ltd.)

Egypt finally adopts a new merger-control regime that would transform the system from a post-notification to a pre-approval system.

After nearly twenty years of applying Competition Law in Egypt and After several attempts from the Egyptian Competition Authority (ECA) to introduce a pre-merger notifications regime and several discussions with government, the parliament and sectorial regulators; on Dec 4th, 2022 the Egyptian parliament has finally approved the proposal to amend the Law on Protection of Competition and Prohibition of Monopolistic Practices No. 3 of 2005 (ECL). 

It is worth mentioning in this regard that Egypt was the only country in the region and one of the few countries in the world whose law was not adopting merger Pre- approval system; at a time when M&As increased significantly in the region during the last few years and in which Egypt occupies an advanced position.

According to article 19 of the ECL (Post notification) the acquisition of shares or assets, or joint venture that results in a change of control of an entity or material influence over such entity should be notified after 30 days of concluding the transaction if the combined turnover of the parties exceeds 100 M EGP. It is not yet clear if the non-controlling minority acquisitions would be included in the new filing requirement.

The statement by the ECA indicates that the new filing requirements would apply to merger and acquisition transaction when the annual turnover of the parties exceeds 900 million EGP (around U.S. $30m).

Under the new regime, the ECA will get to assess each reportable transaction prior to closing to decide whether to clear it or not, or impose conditions on approval. The ECA will have the authority to block a transaction that may result in “limiting, restricting, or harming competition”. According to ECA most transactions should be cleared as far as they don’t harm the market structure. The ECA will have the authority to block or to issue a conditional approval for the merger.

Two types of assessments will be included, as is the case with other legislations such as the Moroccan law, one of which is a preliminary examination of the transaction in question and the other is an in-depth examination as needed to speed up the adjudication of notifications.

The details and scope of the amendments will become clearer in the law and via ancillary regulations, and we expect there to be guidelines published in the near future as well.  We will continue to monitor the progress of the entry into force and all relevant details for companies doing business in Egypt and the region more broadly speaking.

We expect more activity from ECA in the next stage for promoting and explaining the new amendments, and we expect more transparency and clarity when dealing with the concerned persons regarding M&As files, especially in the context of the short period of time required by this type of files and their impact on the market and on investments promotion in Egypt.

Currently, parties considering future transactions that may involve businesses with revenues in Egypt should ensure compliance with the latest Egyptian merger control amendments.

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.”

Conference news: Merger enforcement & emerging antitrust regimes

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Our good friends at CONCURRENCES will be hosting the third instalment of their global antitrust conference next Thursday, September 23rd:
 
The 2021 edition of Concurrences annual “Global Antitrust Hot Topics” conference will be held online, with a series of 3 webinars from Tuesday, September 21st to Thursday, September 23rd.

The third and last webinar will take place on Thursday 23 September from 3:30pm CEST / 9:30am EDT with a panel focusing on key issues for in-house counsel in global antitrust, merger enforcement and emerging regimes.

The conference will then close with a virtual reception where speakers and participants will be able to exchange their thoughts on this 9th edition.

 This image has an empty alt attribute; its file name is concurrences-banner-c_-siteconcurrence-en.png

Speakers will include:

Hanna Danwall
Head of Competition Law
Carlsberg

Nick Hendon
Vice President Mergers & Acquisitions
Olin

Antoine Chapsal
Managing Principal
Analysis Group

John Oxenham
Director
Primerio International

David Cardwell
Partner
Baker Botts

FREE REGISTRATION (CONFERENCE)

Following the 3rd panel, Concurrences is inviting you to the closing reception of this conference. It will allow you to exchange views with the participants and speakers involved in the different webinars of this edition.

This reception will take place via the platform Remo. During this virtual event, you will be able to speak or chat with other attendees and navigate from table to table on a virtual hotel floor.


This virtual panel will also be the opportunity for you to interact with the speakers during the live Q&A session at the end of the panel discussion. 

Mergers: 1st failure-to-notify penalty — Helios now gets what Akzo avoided in 2017

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The COMESA Competition Commission (“CCC”) is stepping up to the plate in 2021, and nobody can deny it. The days of ignoring the CCC’s jurisdiction over M&A deals, joint ventures, and even anti-competitive agreements in the Common Market for Eastern and Southern Africa are decidedly over, as the antitrust enforcer has significantly increased its presence and visibility in the legal and business communities over the past 6 months.

In its latest bid to be considered by the antitrust community to rank among the leading African competition-law agencies, the CCC has issued its first-ever failure-to-notify fine on mobile-phone infrastructure providers Helios Towers Limited (“Helios Towers”), Madagascar Towers S.A (“Madagascar Towers”) and Malawi Towers Limited (“Malawi Towers”) for failure to notify the transaction within the prescribed 30-day time period under Article 24(1) of the COMESA Competition Regulations of 2004. Helios Towers is a UK-based telecommunications company, listed on the LSE and a constituent of the FTSE 250 stock index; it operates in the Democratic Republic of Congo within the COMESA region.

COMESA Competition Commission logo

As we previously reported in 2017 (here and here), to AAT’s knowledge the only other reported transaction that came close to being fined for a failure to be notified by the merging parties was the paints deal between Akzo Nobel and Sadolin / Crown Paints: “In that transaction, the parties boldly proclaimed that the CCC simply did not have any statutory jurisdiction at all,” says attorney Andreas Stargard, an expert in African competition law. Indeed, four years ago, Akzo’s spokespeople flatly claimed that their deal fell “outside the CCC’s purview,” as “[w]e do not have a merger going on; we are a fully independent plant, so COMESA does not come into the picture at all.”

The COMESA’s CID observed that the Parties should have filed their merger notification on 22nd April 2021 in accordance with Article 24 (1) of the Regulations, but breached it.

Interestingly, as to the comparatively low amount of the fine, the CCC took into account significant mitigating aspects pursuant to Article 26(6), including these five considerations:

  • The breach was unintentional;
  • The delay in filing did not yield any “discernible advantage” to the Parties;
  • The breach did not result in any loss or harm in the market;
  • The Parties cooperated with the Commission from the time they were engaged leading to the merger being notified on 2nd July 2021 following their initial engagement; and
  • The Parties have no record of contravention with the Regulations.

Therefore, the CCC merely imposed a 0.05% fine (instead of the statutory maximum under Art. 24(5) of 10% of the parties’ turnover in the preceding calendar year in the common market). AfricanAntitrust.com confirmed this 0.05% figure with a CCC executive, clarifying that this percentage amounted to a fine of U.S. $102,101. Mr. Stargard noted his understanding that the CCC’s positioning of this fine at the extremely low end of the permissible spectrum denotes not only the parties’ significant cooperation and other mitigating factors, outlined above, but also represents a nod by the Commission to the fact that this is the first-ever enforcement action of its kind, and therefore “should not set a precedent in both substance and amount.”

The Parties may appeal the decision (available to AAT readers here) to the full Board of Commissioners in accordance with Article 15(1)(d) of the Regulations as read together with Rule 24 (e) of the COMESA Competition Rules of 2004.

20210903-helios-airtel-decision-on-fine-cidDownload

The Commission’s Registrar, Ms. Meti Disasa, stated that “the fine was the first of a kind for breach of the Regulations. The Commission therefore wishes to remind Undertakings in the Common Market to be cautious of the prescribed timeline for notifying mergers in under Article 24 (1) of the Regulations.” Ms. Disasa warned undertakings operating in the Common Market “to comply with all other parts of the Regulations especially with respect to anti-competitive conduct as the Commission shall henceforth not take lightly any breaches of the regional competition law,” according to the CCC’s press release, also noting that “the decision to fine has no impact on the Commission’s assessment of any competitive effects of the merger, which is still ongoing.”