Category: West Africa

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.

Game On for Regional Merger Control: EACCA to Start Receiving Merger Notifications from November 2025

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By Megan Armstrong

In a long-anticipated move towards deeper regional integration and harmonised competition oversight, the East African Community Competition Authority (“EACCA”) has formally announced that it will begin receiving and reviewing merger and acquisition notifications with cross-border effects as of 1 November 2025. 

This marks a significant implementation milestone under the East African Community Competition Act, 2006, which established the EACCA as the supranational body responsible for enforcing competition policy among the eight EAC Partner States. These Partner States are the Republic of Burundi, the Democratic Republic of Congo, the Federal Republic of Somalia, the Republic of Kenya, the Republic of Rwanda, the Republic of South Sudan, the Republic of Uganda and the United Republic of Tanzania. 

Notably, on 10 June 2025, the COMESA Competition Commission (“CCC”) and the EACCA signed a Memorandum of Understanding (“MOU”) aimed at strengthening collaboration between the two agencies. With six of the eight East African Community (“EAC”) Partner States also being members of COMESA, the MOU seeks to minimise potential duplication in enforcement, while promoting joint advocacy efforts and an enhanced legal certainty and predictability for businesses operating across the region. 

Under the newly effective merger control framework, a transaction must be notified to the EACCA if the combined turnover or assets (whichever is higher) of the merging entities in the EAC equals or exceeds USD 35 million, and at least two of the undertakings have a combined turnover or assets of USD 20 million in the EAC, unless each achieves at least two-thirds of its aggregate turnover or assets in the same Partner State. 

Importantly, once a qualifying transaction is notified to the EACCA, there is no requirement to file with national competition authorities, thereby streamlining the merger review process for regional transactions. Merger notifications will be subject to fees ranging from USD 45 000 to USD 100 000, based on the size of the transaction. 

While the EACCA’s enforcement powers have been active in areas such as restrictive business practices, the operationalisation of merger control fills a long-standing gap in this regional competition regime. It also brings the EAC in line with other regional economic communities like the CCC and ECOWAS Regional Competition Authority (“ERCA”), which already exercise merger control functions. 

Firms with pending or planned transactions in the region should prepare to engage with the Authority under this new regime, ensuring timely filings and compliance from November onwards.

The ECOWAS Merger Control Regime: A New Chapter in Regional Competition Law

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By Matthew Freer 

Introduction

The Economic Community of West African States (“ECOWAS”) marked a significant step toward deeper regional integration and market regulation with the formal activation of its merger control regime on 1 October 2024. This regime, now operational under the ECOWAS Regional Competition Authority (“ERCA”), brings a unified, supranational dimension to competition enforcement across the 15 ECOWAS member states. These member states are Benin, Burkina Faso, Cabo Verde, Cote d’Ivoire, The Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone, and Togo.[1] This new framework aims to safeguard the regional market against anti-competitive mergers and acquisitions, foster economic development, and ensure fair competition. It also positions ECOWAS among the growing number of African regional economic communities introducing comprehensive competition oversight mechanisms.

Established on 28 May 1975 through the Treaty of Lagos, ECOWAS was conceived to promote economic integration across the West African sub-region. Its initial vision was to foster a large economic and trading bloc through cooperation in industry, transport, telecommunications, energy, agriculture, commerce, monetary and financial policy. Over time, ECOWAS has evolved to address broader governance issues, including political stability, security, and economic justice, making its merger control regime a natural extension of its mandate to build a fair and efficient regional economy.

Legal Foundations and Institutional Framework

The legal foundations and institutional framework for the ECOWAS merger control regime are built on a series of key legal instruments that establish the rules for competition within the region. The key foundational document is the Supplementary Act A/SA.1/12/08, adopted in 2008, which introduced the ECOWAS Competition Rules and established ERCA as the institutional mechanism to implement them.[2] This Act was followed by Regulation C/REG.23/12/21, which laid down the procedural rules for merger notification and review within the region.[3] In early 2024, Implementing Regulation No. 1/01/24 was promulgated to clarify notification thresholds, filing requirements, and review timelines.[4] These instruments collectively define the substantive and procedural contours of the regime and signal a shift toward rules-based governance of regional competition policy. 

Scope and Jurisdiction

The scope of the ECOWAS merger control regime is broad and designed to capture transactions with cross-border implications within the Community. The regime is both mandatory and suspensory in nature, meaning that parties must notify qualifying transactions and obtain clearance before implementation. Specifically, a merger must be notified if the parties involved operate in at least two ECOWAS member states and meet certain financial thresholds. The primary thresholds relate to turnover or asset value within the region: the combined turnover or relevant balance sheet total of the merging parties must exceed 20 million West African Units of Account (“WAUA”), roughly equivalent to $26.8 million, and at least two of the parties must individually exceed 5 million WAUA, or approximately $6.7 million.[5] Importantly, these thresholds are based on regional economic activity, rather than global figures, ensuring that the rules are directly tailored to the regional market context in which the member states operate. Still, companies operating primarily in a single large ECOWAS economy, such as Nigeria, may wonder whether regional thresholds fairly reflect domestic realities. 

Definition of Mergers and Control

Under the ECOWAS rules, the term “merger” includes a range of transactions such as acquisitions of control, the creation of joint ventures, or other forms of consolidation between entities.[6] “Control” is broadly defined to include not just the legal ownership of a majority of shares or voting rights but also de facto control—meaning the capacity to exert decisive influence over an enterprise’s strategic commercial behaviour.[7] In simpler terms, this means the ability to influence or decide a company’s major decisions and actions, even without owning it outright. This broad interpretation of control is similar to that used by both the Common Market for Eastern and Southern Africa (“COMESA”) and South Africa, which consider influence beyond shareholding, including through management or policy direction.[8]This mirrors a growing understanding across Africa that control can be exerted in subtle but decisive ways, not unlike influence in boardrooms or state-linked enterprises.

Procedural Review Timelines

Once a notification is submitted, ERCA’s Executive Director is tasked with the initial review of the merger, which must be concluded within 60 working days. If further information is required, the Director may extend this deadline by another 30 working days. After the completion of the initial review, the ERCA Council is granted an additional 30 working days to make a final decision on the transaction. This period may be extended by a further 15 days where necessary. Therefore, the total possible days for a final decision from the date of the initial notification is 135 working days. Although the legislation provides these timelines, it does not clarify the frequency of Council meetings, raising possible questions about potential procedural delays and administrative backlog. 

Understandably, given the novelty of the regime, there is a risk that administrative capacity may initially lag behind its procedural ambitions—though this is a challenge that is likely to diminish as institutional experience and capacity builds over time.

Notification Fees and Enforcement Penalties

The financial obligations imposed on notifying parties also deserve attention. A notification fee is payable and may amount to 0.1% of the combined annual turnover or asset value—whichever is higher—of the companies involved within ECOWAS. This fee structure, notably, has no statutory ceiling, which could render compliance particularly costly for large-scale mergers. Such uncapped fees introduce a level of uncertainty into the merger planning process and may discourage investment or create disparities between firms of different sizes. Given this, it might be worth considering a sliding scale or a cap to ensure that start-ups and small and medium enterprises (“SMEs”) are not unfairly burdened by compliance costs. Nevertheless, this mechanism reflects a growing trend among African competition authorities to align filing fees with the potential market impact of a transaction. 

If parties fail to notify a qualifying merger, or proceed with implementation before clearance is granted, ERCA may impose fines of up to 500,000 WAUA per day. These penalties, which equate to approximately $660,000 daily, are designed to ensure compliance and deter strategic non-disclosure.[9] This is notably harsher than COMESA’s flat $500,000 fine.[10] Such a stringent approach is consistent with the practices of more established jurisdictions and signals ERCA’s intent to enforce its mandate robustly. However, in a region where the ability to enforce regulations and the private sector’s understanding of competition law are still developing, this tough enforcement model could cause problems and require ongoing efforts to build capacity.

Substantive Assessment and Public Interest Considerations

In terms of substantive assessment, ERCA is empowered to block a merger that substantially lessens or is likely to substantially lessen competition within the ECOWAS common market. However, the authority also retains the discretion to approve otherwise anti-competitive mergers if they are deemed to serve a compelling public interest. This approach being similar to other African jurisdictions, particularly South Africa. Factors that may justify such exceptions include the promotion of socio-economic development, the protection of SMEs, and broader regional development goals.[11] This public interest override introduces a layer of flexibility to the competition assessment, but also demands careful balancing to ensure that economic efficiency is not sacrificed in pursuit of political or social objectives. Used wisely, this discretion can empower regional development—but overuse however could compromise the credibility of competition law as a neutral economic tool.

Appeals Mechanism and Judicial Review

The possibility of judicial review also reflects ECOWAS’s commitment to transparency and the rule of law. Parties aggrieved by ERCA’s decisions may appeal to the ECOWAS Court of Justice. This appeals mechanism is essential in safeguarding procedural fairness and offers a vital check on the Authority’s exercise of power.[12] However, the ECOWAS Court’s experience and ability to handle competition law cases are still developing, and it’s unclear how actively and effectively it will deal with these disputes. Building a body of jurisprudence will take time, but even a few early decisions could establish helpful precedent for future cases.

Emerging Challenges

Despite its promise, the implementation of the ECOWAS regime is not without its challenges. First among these is the potential for jurisdictional overlap with national competition authorities and with the West African Economic and Monetary Union (“UEMOA”), which also exercises competition law functions within several ECOWAS states. This duplication may result in regulatory uncertainty, forum shopping, and increased compliance costs for businesses operating in the region. In the East, COMESA faced similar early coordination challenges, and ECOWAS would do well to draw lessons from that experience in harmonising efforts with UEMOA. Moreover, the regime enters into force at a time of political uncertainty in West Africa, with three ECOWAS member states—Burkina Faso, Mali, and Niger—currently suspended or in the process of exiting the Community. The regional political context may complicate the regime’s uniform application and threaten its credibility as a pan-West African legal instrument.

Conclusion

Notwithstanding these concerns, the ECOWAS merger control framework represents a landmark moment in the evolution of African competition policy. It brings the region into alignment with global and continental trends, offering a platform for increased regulatory convergence and cross-border cooperation. For legal practitioners and multinational corporations operating in the region, the message is clear: compliance with ECOWAS merger rules is no longer optional, and legal due diligence must include early engagement with ERCA’s requirements. While aspects of the regime may still require some clarification and refinement, particularly in relation to thresholds, procedures, and enforcement modalities, the overall architecture provides a strong foundation for fostering competitive regional markets.

The operationalisation of the ECOWAS merger control regime is a welcome development for those advocating deeper economic integration and regulatory harmonisation in West Africa. As the Authority gains experience and jurisprudence begins to develop, ERCA is likely to become a central actor in shaping the competitive landscape of the region. For this to succeed, continued engagement between regional institutions, national authorities, and the private sector will be essential. The challenge ahead lies not only in enforcing the rules but in embedding a culture of compliance and competition across ECOWAS’s diverse and dynamic member states. In time, perhaps ECOWAS could even serve as a model for other African regions where economic integration is still at a conceptual stage.

 

[2] Economic Community of West African States (ECOWAS), Regulation C/REG.23/12/21 on the Implementation of the ECOWAS Competition Rules by the ECOWAS Regional Competition Authority (ERCA), December 2021

[3] Regulation C/REG 23/12/21 on the Rules of Procedure for Mergers and Acquisitions in ECOWAS

[4] Regulation C/REG.1/01/24 on the Procedural Manuals on Thresholds for Mergers and Acquisitions in ECOWAS. 

[5] Manual of Threshold for Mergers and Acquisitions and Threshold Indicating a Dominant and Monopolistic Position.

[6] Manual of Threshold for Mergers and Acquisitions and Threshold Indicating a Dominant and Monopolistic Position. At page 3.

[7] Supplementary Act A/AS.1/12/08 Adopting Community Competition Rules and the Modalities of their Application within ECOWAS.

[8] COMESA Merger Guidelines (2014), sec. 2.3.

 

[10] COMESA Competition Rules, Art. 24.

[11] Economic Community of West African States (ECOWAS), Regulation C/REG.23/12/21 on the Implementation of the ECOWAS Competition Rules by the ECOWAS Regional Competition Authority (ERCA), December 2021.

[12] ECOWAS Regional Competition Authority (ERCA), Welcome to ECOWAS Regional Competition Authority, available at: https://www.arcc-erca.org/ (accessed 25 April 2025).

More Regional Antitrust: Competition law in West Africa at the hands of ECOWAS

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After the successful launch (and by now, first decade) of its Eastern regional counterpart, the COMESA Competition Commission, as of today, West Africa’s ECOWAS body likewise boasts a supra-national antitrust enforcement regime. AAT will be following its path closely.

By Jannes van der Merwe

The Economic Community of West Africa States (“ECOWAS”) was established by fifteen West Africa countries (“member states”) in 1975 when the member states signed the ECOWAS Treaty, with the aim and objectives to maintain and enhance economic stability and development in Africa.[1] The member states signed the revised treaty in 1975, currently governing the member states.

The current member states are Benin, Burkhina Faso, Cabo Verde, Côte d’Ivoire, The Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sieera Leone and Togo.

Authority Established in 2008

In 2008 ECOWAS implemented two pieces of legislation through the authority of the treaty to steer the competition framework within the member states. The first was the Supplementary Act A/SA.1/12/08, and the second Supplementary Act A/SA.2/12/ 08.

Supplementary Act A/SA.1/12/08:

The purpose of this piece of legislation (known as the Community Competition Rules) nutshell is to promote competition, enhance economic efficiency, prohibit anti-competitive conduct that restricts or distorts competition, ensure consumer welfare and to expand opportunities for domestic enterprises of the member states. [2]

Supplementary Act A/SA.2/12/ 08:

The purpose of this piece of legislation was to establish a regional body to be known as the ‘ECOWAS Regional Competition Authority’ (“the Commission”) to govern, oversee and implement the Community Competition Rules.

The Commission

The formal launching of the Commission took place in May 2019. In December 2021, together with further enactment of legislation, the Council of Ministers of ECOWAS amended Supplementary Act A/SA.2/12/ 08 to, inter alia, enhance article 2, governing the bodies of the ERCA[3].

The amendment established two formal bodies of the ERCA, being the Council and the Executive Board of the ERCA, together with the Executive Directorate who is the administrative, investigative and implementing body of the Council’s decisions[4].

On 2 October 2024 the newly elected Council of the Commission will be sworn in at Banjul, the capital of the Republic of Gambia. See photo below.

This event will mark the dawn of a new day for competition in West Africa, whereby the Commission, through the Council, will become fully functional in order to administrate and give effect to the Competition Rules to member states.

Legal Framework

The Commission, through the Council, will be able to give effect to the preamble of the Treaty and align a vitally important piece that was missing from the practical application of the treaty.

The Community Competition Rules will be the governing legislation providing the umbrella under which the Commission will operate.

During December 2021, the Council of Ministers for ECOWAS further enacted regulations to govern the rules and procedures to give effect to the articles of the Community Competition Rules established in 2008.

A brief description of all the relevant legal framework will be discussed below.

 The Competition Community Rules

The Competition Community Rules will regulate, inter alia, Agreements and Concerted Practices in Restraint of Trade; Abuse of Dominant Position; Mergers and Acquisitions; State Aid; Public Enterprises; Compensation for Victims of Anti-Competitive Practices; Authorisation and Exemptions; Agreements Concluded by Member States and the Application and Implementation of the Community Competition Rules[5].

ERCA’s Rules of Procedure in Competition Matters

Regulation C/REG.24/12/21[6] was established to set out the rules and procedures of the ECRA in competition matters and by doing so, harmonising competition laws, procedures, cooperations, investigations, exchange of information, decision making, enforcement, sanctions and compensation[7].

Supplementary Act A/SA.3/12/21

The amended act’s new article 3 provides a positive duty on the Commission to represent ECOWAS wherever necessary in matters of competition and consumer protection[8].

Mergers and Acquisitions in ECOWAS

Regulation C/Reg. 23/12/21[9] was established to set out the rules and procedures for mergers and acquisitions.

This regulation requires that merging parties of member states that meets the threshold will have to obtain prior approval before implementing. The merger threshold is governed by enabling Rule PC/REX.1/01/2024[10]

Leniency and Immunity Proceedings in Competition within ECOWAS

Regulation C/REG.22/12/21[11] was established to set out the rules, conditions and procedures of leniency and immunity applications to the Commission. Simultaneously, this regulation is a guide to the Commission in the exercise of its investigative and prosecutorial discretion in illegal cartels who, through their cooperation, help to reveal Cartel conduct[12].

Regulation C/REG.22/12/21 is accompanied with enabling Rule PC/REX.1/01/24[13] containing the manual for leniency and immunity applications and what leniency and immunity the Commission may grant for enterprises of member states which are engaged in anti-competitive behavior and who voluntarily disclose information to facilitate the Community Competition Rules.

Final Word

The operational ECOWAS Regional Competition Authority and the implementation of a functioning Council for the ECOWAS Regional Competition Authority is a leap forward in the West Africa competition sphere and will protect enterprises and enhance competition within the West Africa markets, providing benefits for entrepreneurs, enterprises and consumers.

[1] Article 3, ECOWAS Revise Treaty, 24 July 1993 (‘the treaty;’).

[2] Supplementary Act A/SA.1/12/08, Article 3.

[3] Supplementary Act A/SA.3/12/21 Relating to the Amendments of Supplementary Act A/SA.2/12/08.

[4] Article 2(new), Supplementary Act A/SA.3/12/21 Relating to the Amendments of Supplementary Act A/SA.2/12/08.

[5] Article 5-13, Supplementary Act A/SA.1/12/08.

[6] Regulation C/REG.24/12/21 on the ERCA’s Rules and Procedures in Competition Matters.

[7] Article 3, Regulation C/REG.24/12/21 on the ERCA’s Rules and Procedures in Competition Matters.

[8] Article 3(new), Supplementary Act A/SA.3/12/21 Relating to the Amendments of Supplementary Act A/SA.2/12/08.

[9] Regulation C/Reg.23/12/21 on the Rules of Procedure for Mergers and Acquisitions in ECOWAS.

[10] Enabling Rule PC/REX.1/01/24 on Manuals of the Procedures of the ECOWAS Regional Competition Authority.

[11] C/REG.22/12/21 on the Rules on Leniency and Immunity Procedures in Competition within ECOWAS.

[12] Article 1, C/REG.22/12/21 on the Rules on Leniency and Immunity Procedures in Competition within ECOWAS.

[13]  Enabling Rule PC/REX.1/01/24 on Manuals of the Procedures of the ECOWAS Regional Competition Authority.

Breaking News: Nigerian Competition Act Signed into Law

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Nigerian President Muhammadu Buhari has signed the Federal Competition and Consumer Protection Bill into law (the “Competition Act”).

nigeriaAfter years of deliberations, the legislative process is now complete, and with the establishment of a Competition Commission and Competition Tribunal, Nigeria is the latest African jurisdiction to establish a dedicated antitrust authority.

From a merger-control perspective, the Competition Act and the Commission’s jurisdiction will ultimately supersede the ‘placebo antitrust’ role historically played by the Securities and Exchange Commission (SEC), which has thus far received and assessed merger notifications above certain turnover thresholds, pursuant to the Investments and Securities Act.  The Act repeals the Consumer Protection Act, which did not contain stand-alone antitrust provisions.

Michael-James Currie, a competition lawyer advising clients across Africa, says the new Competition Act applies broadly to all commercial activities within Nigeria, but also to conduct outside of Nigeria (if the person or company is a Nigerian resident or incorporated in Nigeria or products are sold into Nigeria).  Furthermore, any acquisition or change of control of a business or asset outside of Nigeria which results in the change of control of an asset or business in Nigeria will also fall within the jurisdiction of the Competition Act.

The Commission has substantial powers, including considering and approving mergers, declaring business practices as amounting to abuse of dominance, prohibiting price discrimination or declaring unlawful any agreement which is in contravention of the Competition Act.

From an investigatory perspective, the Commission may subpoena witnesses or, upon obtaining a search warrant, conduct dawn raids, consistent with international best practices.

Any reviews or appeals in relation to a decision taken by the Commission may be made to the Competition Tribunal.

In relation to prohibited conduct, any agreement which has the effect or likely effect of preventing, restricting or distorting competition in any market is unlawful. Currie notes that the Act in particular prohibits collusive arrangements but also various forms of unilateral conduct include tying or bundling or limitations on the production or distribution of goods. John Oxenham, director at Primerio, echoes these sentiments and confirms that the Act provides for a rule-of-reason analysis.  He notes further that, in addition to the above general prohibitions, the Act also prohibits minimum resale price maintenance.

Fellow Primerio Director, Andreas Stargard, notes that the “monopolisation” prohibition against abuse of dominance mirrors those typically found in most jurisdictions; the wording of the Act appears to be influenced largely by the South African Competition Act.  That said, the test for dominance is essentially whether a firm is able to exert market power and, unlike South Africa, cannot be based on market-share thresholds alone.  In sum, he concludes:

“This latest piece of competition legislation was first introduced in 2011 by Rt. Hon. Yakubu Dogara from Bauchi State, who perhaps not surprisingly happens to be an attorney, and co-sponsored by Sen. Ahmed Lawan (Yobe North).

Its now final — and successful — iteration that was signed into law this week brings Africa’s largest economy into the fold of modern antitrust jurisdictions.  Many have called for this to happen for years [see hereand here).  Our firm’s West Africa team is eager to work on matters arising under the Act.”

The Bill's sponsor, Rt. Hon. Yakubu Dogara
One of the Bill’s sponsors, Rt. Hon. Yakubu Dogara

In terms of penalties, an antitrust violation attracts both a potential administrative penalty (capped at 10% of the respondent’s annual turnover) and criminal liability for directors who commit an offence, notes Currie, pointing to a  maximum of three years imprisonment as a fairly severe white-collar sentence potential.  It remains unclear to-date whether the turnover calculation for purposes of the administrative penalty determination refers to local or worldwide revenues, observes Stargard.

In relation to merger control, Oxenham notes that the Competition Act provides further clarity as to the type of transactions which require mandatory notification, notably including joint ventures, which were previously not identified by name under the SEC’s legislative regime.  The Act has introduced both de facto and de jure forms of control as potential triggers for merger notification. The Commission has not yet published Regulations which will prescribe turnover thresholds for “small” and “large” mergers. Both Oxenham and Currie point out that based on the wording of the Act, there seems to be a substantial amount of similarity between the Nigerian Act and the merger control process in South Africa including time frames involved and the introduction of public interest assessment in merger control.

This is not surprising, as the South African Competition Commission (SACC) has, through the African Competition Forum, been instrumental in advocating a robust competition regime. Furthermore, Oxenham suggests that there may be substantial amount of cooperation and assistance provided by the SACC to their Nigerian counterparts.

[AfricanAntitrust will provide further updates in relation to the Nigerian Competition Act and appreciates the input from leading antitrust practitioners and the on-going support of the Primerio team. To contact a Primerio representatives, please click here ]

Pan-African Antitrust Round-Up: Mauritius to Egypt & Tunisia (in)to COMESA

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A spring smorgasbord of African competition-law developments

As AAT reported in late February, it is not only the COMESA Competition Commission (CCC), but also the the Egyptian antitrust authorities, which now have referred the heads of the Confederation of African Football (CAF) to the Egyptian Economic Court for competition-law violations relating to certain exclusive marketing & broadcasting rights.  In addition, it has been reported that the Egyptian Competition Authority (ECA) has also initiated prosecution of seven companies engaged in alleged government-contract bid rigging in the medical supply field, relating to hospital supplies.

Nigeria remains, for now, one of the few powerhouse African economies without any antitrust legislation (as AAT has reported on here, here, here and here).

But, notes Andreas Stargard, an antitrust attorney with Primerio Ltd., “this status quo is possibly about to change: still waiting for the country’s Senate approval and presidential sign-off, the so-called Federal Competition and Consumer Protection Bill of 2016 recently made it past the initial hurdle of receiving sufficient votes in the lower House of Representatives.  Especially in light of the Nigerian economy’s importance to trade in the West African sphere, swift enactment of the bill would be a welcome step in the right direction.”

The global trend in competition law towards granting immunity to cartel whistleblowers has now been embraced by the Competition Commission of Mauritius (CCM), but with a twist: in a departure from U.S. and EU models, which usually do not afford amnesty to the lead perpetrators of hard-core antitrust violations, the CCM will also grant temporary immunity (during the half-year period from March 1 until the end of August 2017) not only to repentant participants but also to lead initiators of cartels, under the country’s Leniency Programme.

The Executive Director of the CCM, Deshmuk Kowlessur, is quoted in the official agency statement as follows:

‘The policy worldwide including Mauritius, regarding leniency for cartel is that the initiators of cartel cannot benefit from leniency programmes and get immunity from or reduction in fines. The amnesty for cartel initiatorsis a one-off opportunity for cartel initiators to benefit from immunity or up to 100% reduction in fines as provided for under the CCM’s leniency programme. The amnesty is a real incentive for any enterprise to end its participation in a cartel. In many cases it is not clear for the cartel participant itself as to which participant is the initiator. The participants being unsure whether they are an initiator finds it too risky to disclose the cartel and apply for leniency. The amnesty provides this unique window of 6 months where such a cartel participant can apply and benefit from leniency without the risk of seeing its application rejected on ground of it being an initiator.’

 

COMESA Competition Commission logoFinally, COMESA will grow from 19 to 20 member states, welcoming Tunisia at the upcoming October 2017 summit: the official statement notes that “Tunisia first applied for observer status in COMESA in 2005 but the matter was not concluded. In February, 2016 the country formally wrote to the Secretary General making inquiries on joining COMESA. This set in motion the current process towards its admission. once successfully concluded, Tunisia will become the 20[th] member of COMESA.”

This means that within 6 months of accession to the Common Market, Tunisia’s business community will be bound by the competition regulations (including merger control) enforced by the CCC.  Speaking of the CCC, the agency also recently entered into a Memorandum of Understanding with the Mauritian CCM on March 24, facilitating inter-agency coordination.  In addition, the Zimbabwean Competition and Tariff Commission (CTC) will host a national sensitisation workshop on COMESA competition policy on May 16, 2017 in Harare, purportedly as a result of “over 50 transactions involving cross-border mergers notified” to the CCC involving the Zimbabwean market.  “The main objective of the national workshop is to raise awareness among the key stakeholders and business community in Zimbabwe with regards to the provisions and implementation of COMEA competition law,” the CTC noted in a statement.

 

Kipiani and Tchapga: advancing competition law & economics in Cameroon

Posted on by Editor

Competition Law conference provides most in-depth look at the state of Cameroonian antitrust law

Event organised by Dr. Patricia Kipiani and Prof. Tchapga of Primerio & CEMAC, the Cameroon school of business and its competition law section

What follows is an article that appeared in French in the Le Droit journal, written by Stéphane Ngoh, reprinted here with permission.  An English translation is below.  An interview with Dr. Kipiani related to the conference can be found here.  In it, she discusses the planned creation of a “Competition Observatory” for the country.

Le cabinet Primerio International a organisé un séminaire de sensibilisation aux enjeux du droit et de la politique de la concurrence au Cameroun et dans l’espace de la CEMAC. L’évènement lancé par le ministre du Commerce, M. Luc Magloire Mbarga Atangana s’est déroulé le 7 juillet 2016 au siège du GICAM à Douala.

Présenter la concurrence comme « un bien commun » à la collectivité et « renforcer la pédagogie de la concurrence dans ses dimensions juridiques et politiques» tels peuvent être les maitres mots du premier « rendez-vous de la concurrence» au Cameroun et en CEMAC impulsé par le cabinet d’expertise Primerio International et placé sous le thème «Du droit et de la politique de la concurrence au Cameroun et dans l’espace CEMAC ».  Comme pour en souligner toute l’importance, le ministre du Commerce du Cameroun, Luc Magloire Mbarga Atangana, a fait le déplacement de la capitale économique dans l’optique d’en présider le lancement officiel. Le Docteur en droit et avocate au barreau de Bruxelles, Mme Patricia Kipiani, qui représentait le cabinet Primerio International pour l’occasion a expliqué combien cette première édition des « rendez-vous de la concurrence », se voulait sérieuse. Toute chose ayant justifié l’association aussi bien des universitaires de tous bords, du groupement inter-patronal du Cameroun (Gicam) que des autorités publiques camerounaises. Les Chercheurs de l’Université de Paris 1 Panthéon-Sorbonne en France et les spécialistes du droit de la concurrence, le Professeur des universités Martine Behar-Touchais et l’enseignant-chercheur Laurent Vidal ont fait le déplacement du Gicam.

1425573796Le ministre du Commerce, qui intervient comme l’autorité publique de tutelle du secteur de la concurrence, a tenu à préciser que les rendez-vous de la concurrence ne pouvaient mieux tomber dans un contexte communautaire et camerounais situé à « la veille de l’entrée en vigueur des Accords de partenariat économique « APE », entre les pays ACP et l’UE dont le Cameroun est partie », ces accords qui impliquent une ouverture de l’économie imposent donc qu’un certain accent soit mis sur le droit et la politique de la concurrence. Au demeurant, le représentant de l’Etat du Cameroun à ce rendez-vous a tenu à réaffirmer la place reservée jusqu’ici à la concurrence, « notre conviction, a –t-il expliqué, est que le commerce a besoin d’un environnement sain et c’est la raison pour laquelle un arsenal des textes législatives ou règlementaires existe au Cameroun et cela témoigne de la volonté de l’état de réguler le secteur ». A l’appui de son affirmation, M. Luc Magloire Mbarga Atangana a soutenu que la volonté et la détermination du Cameroun à faire du droit de la concurrence un enjeu de poids, se traduit depuis des années. Pour s’en féliciter, il souligne que les premières velléités d’encadrement de la concurrence remontent aux années1990 et qu’autant les lois ont créé la Commission nationale de la concurrence (Cnc) autant des décrets  en ont fixés les contours organisationnels et structurels. Le président de ladite Commission Léopold Boumsong, qui était dans la suite du Mincommerce, a été appelé à présenter les aspects nationaux de la concurrence et précisément le rôle de la Commission nationale de la concurrence. Ce rôle, comme l’a martelé le ministre, doit s’attacher à « poursuivre et sanctionner les pratiques anticoncurrentielles, en s’appuyant sur des textes datant et nouveau à l’instar de la loi cadre protection sur la consommation, de la nouvelle loi portant organisation des activités commerciales ainsi que la loi sur commerce extérieur ».

TROIS GRANDES PRATIQUES ANTICONCURRENTIELLES

cameroonLe président de la Cnc a précisé à l’égard des chefs d’entreprises qui emplissaient la salle du Gicam qu’il existe sommairement 3 types de pratiques qui ont « pour effet d’empêcher, de fausser ou de restreindre de manière sensible, l’exercice de la concurrence au niveau du marché intérieur » au sens de la loi n°98/013 du 14 juillet 1998 relative à la concurrence. Il s’agit des abus d’une entreprise ou d’un groupe d’entreprises en position dominante sur le marché, des fusions et acquisitions d’entreprises et aussi des accords anticoncurrentiels. L’un dans l’autre, il est apparu que les pratiques anticoncurrentielles au Cameroun sont constatées par procès-verbal dressé par les membres de la Commission suite aux enquêtes consécutives à une plainte d’une personne physique ou morale ou à celles initiées par eux-mêmes.

Par la suite, les aspects multilatéraux de la concurrence ont été évoqués au travers de la présentation du rôle de la Conférence des Nations Unies sur le Commerce et le Développement (CNUCED) en matière l’accompagnement des politiques de concurrence. L’économiste de la CNUCED, Yves Kenfack a découvert le code CNUCED de la concurrence dont il a salué la pertinence tout en regrettant que celui-ci ne soit pas contraignant pour les Etats signataires.

Un autre moment des échanges a porté sur les aspects croisés entre le point de vue de l’économiste et celui du juriste quant à la concurrence. C’est M. Flavien Tchapga, économiste, consultant lui aussi à Primerio International et professeur associé à l’Université Senghor d’Alexandrie, qui s’y est attelé face à l’auditoire de la salle des conférences du Gicam. L’intervention de ce dernier peut se ramener à une suggestion forte faisant suite à l’interrogation suivante : « peut-on réussir la sensibilisation sur la concurrence si l’on ne tient pas compte des spécificités de l’environnement local ? ». Réponse, en effet, dans un contexte où 9 entreprises sur 10 sont individuelles, il faut se méfier des formules des juristes qui sont souvent larges et complexifiées pour les économistes plus proches du terrain.

Au cours du rendez-vous de la concurrence, une table-ronde a été ouverte pour asseoir la dimension didactique de la rencontre. Les débats et les questions étaient placés sous la houlette de M. Martin Abega, administrateur de sociétés, ancien membre de la Commission nationale de la concurrence et Consul honoraire du Royaume des Pays-Bas au Cameroun.

En dernière analyse, les expériences pratiques de règlementations et de politiques de la concurrence en Europe et au Cameroun ont clairement été croisées par le biais de Martine Behar-Touchais et Laurent Vidal d’une part et de Me Abdoul Bagui d’autre part. Etant entendu qu’au Cameroun, la régulation est émiettée par secteur d’activités.

Ce sont concrètement toutes les difficultés liées au libre exercice de la concurrence qui ont été passées au crible. La contrebande, la persistance des monopoles dans certains domaines ou encore la contrefaçon relèvent de ces écueils épluchés par les soins des experts internationaux et locaux à l’instar des représentants du CNUCED, de CEMAC, de l’OHADA et surtout des entreprises camerounaises. Le Dr. Patricia Kipiani a expliqué qu’il était important que « les réflexions et les échanges reviennent sur les difficultés auxquelles se heurtent les entreprises, sur les difficultés liées à la concurrence déloyale, à leur impact sur le secteur informel et autres activités informelles des entreprises formelles. Et aussi qu’ un accent soit mis sur la réglementation et sur les politiques économiques susceptibles de promouvoir notre espace économique ».

Stéphane Ngoh

For our English readers, below is a Google Translate version in English of the article:

The international  firm Primerio organized an awareness seminar on issues of law and competition policy in Cameroon and in the CEMAC zone. The event launched by the Minister of Trade, Luc Magloire Mbarga Atangana Mr. took place July 7, 2016 at the headquarters of GICAM in Douala.

Introduce competition as a “common good” to the community and “strengthen the teaching of competition in its legal and political dimensions” — such are the watchwords of the first “meeting competition” in Cameroon and driven CEMAC by the consultancy firm Primerio International and under the theme “from the law and competition policy in Cameroon and in the CEMAC.” As if to emphasize the importance, the trade minister of Cameroon, Luc Magloire Atangana Mbarga, made the trip from the economic capital with a view to chair the official launch. The Doctor of Law and lawyer at the Brussels Bar, Patricia Kipiani, who represented the firm Primerio International for the occasion explained how this first edition of “appointments of competition”, was meant seriously. Anything that justified the association both academics of all stripes, the inter-group employers of Cameroon (Gicam) that the Cameroonian public authorities. The researchers from the University of Paris 1 Panthéon-Sorbonne in France and specialists from the competition law, the University Professor Martine Behar-Touchais and Laurent Vidal teacher-researcher made the trip from Gicam.

Minister of Commerce, which acts as a public authority supervising the sector to competition, has insisted that the appointment of the competition could not get better in a community and Cameroonian context located “on the eve of the entry into force of the economic partnership agreements ‘EPAs’, between the ACP countries and the EU which Cameroon is a party “, these agreements which involve opening up the economy therefore require that a certain emphasis on law and the competition policy. Moreover, the representative of the State of Cameroon to this appointment held to reaffirm the place reserved far in the competition, “our conviction has -t he explained, is that the trade needs a healthy environment and that is why an arsenal of legislative and regulatory texts exist in Cameroon and it demonstrates the willingness of the state to regulate the sector. “ In support of its contention, Luc Magloire Atangana Mbarga argued that the will and determination of Cameroon to the competition law of a weight issue, resulting in years. To be welcomed, he stressed that the first framework for competition ambitions date back to the 1990’s and that so many laws created the National Competition Commission (CNC) as decrees have laid the organizational and structural contours. The president said Leopold Commission Boumsong, who was later in the MINCOMMERCE, was called to present the national aspects of competition and specifically the role of the National Competition Commission. This role, as insisted the minister, must strive to “prosecute and punish anti-competitive practices, based on texts dating and new like the law under protection on consumption, the new law on the organization of business and the foreign trade Act. “

THREE MAJOR ANTI-COMPETITIVE PRACTICES

The president of the CNC said against business leaders who filled the room Gicam there summarily 3 types of practices which have “the effect of preventing, distorting or restricting significantly, the year of competition in the internal market “under law No. 98/013 of 14 July 1998 on competition. This is abuse of a company or group of companies in a dominant market position, mergers and acquisitions as well as anti-competitive agreements. One the other, it appeared that anti-competitive practices in Cameroon are recorded in minutes drawn up by the Commission of the members following the investigations following a complaint from a natural or legal person or those initiated by them -Same.

Thereafter, the multilateral aspects of competition were discussed through the presentation of the role of the United Nations Conference on Trade and Development (UNCTAD) in support for competition policy. The economist of UNCTAD, Yves Kenfack discovered the UNCTAD code of competition which he praised the relevance while regretting that it was not binding on the signatory states.

Another moment of trade covered the Crusaders aspects between the views of the economist and that of the lawyer about the competition. It was Mr. Flavien Tchapga, economist, consultant also to Primerio International and associate professor at the Senghor University of Alexandria, which it is harnessed facing the audience of the Gicam conference room. The intervention of the latter can be reduced to a strong suggestion in response to the following question: “can we succeed awareness on competition if it does not take into account the specificities of the local environment? “. Response, in fact, in a context where 9 out of 10 companies are individual, beware formulas lawyers who are often larger and more complex to the nearest economists ground.

During the appointment of the competition, a panel discussion was opened to establish the educational dimension of the encounter. The debates and issues were under the leadership of Mr. Martin Abega, corporate director, former member of the National Competition Commission and Honorary Consul of the Kingdom of the Netherlands in Cameroon.

Ultimately, the practical experiences of regulations and competition policies in Europe and Cameroon have clearly been crossed through Martine Behar-Touchais and Laurent Vidal one hand and Mr. Abdul Bagui other. It being understood that in Cameroon, regulation is broken by sector.

These are all practical difficulties related to the free exercise of competition that were screened. Smuggling, the persistence of monopolies in certain areas or counterfeiting within these pitfalls peeled for the service of international and local experts like the representatives of UNCTAD, CEMAC, OHADA and especially Cameroonian companies. Dr. Patricia Kipiani said it was important that “the reflections and exchanges back on the difficulties firms face, the difficulties related to unfair competition, their impact on the informal sector and other informal activities formal businesses. And also that an emphasis on regulation and economic policies that promote our economic space. “

CEO Calls for Introduction of Nigerian Competition Law

Posted on by Editor

 

“Too huge to be monopolised”? — Orkeh cites business need for Nigerian competition law

The Managing Director and Chief Executive Officer of African Cable Television, Mr. Godfrey Orkeh, was interviewed recently in Lagos, Nigeria, and discussed a topic we at AAT have previously addressed: The need for Africa’s largest economy to enact antitrust laws.  ACTV (pronounced “active”) began its service in December 2014 and has faced an uphill battle in entering the pay-TV marketplace.

As John Oxenham, a founding director of Pr1merio, the Africa-focussed legal advisory firm and business consultancy, points out: “In April of 2014, Nigeria surpassed South Africa as the continent’s largest economy, yet it still lacks any enforceable antitrust provision in its statutes.” (See Economist Apr. 12, 2014: “Africa’s New Number One“).

nigeria

Even prior to Nigeria’s rise to become the continent’s premier economy in terms of GDP, we published several calls for a Nigerian competition law. For example, in our article “Another call for Competition Law in Nigeria: Privatization of Electricity,” AAT contributor Chinwe Chiwete wrote:

The way forward still remains for Nigeria to have a Competition Law as the basic legal framework upon which other sector regulations can build upon.

Chilufya Sampa, a former COMESA Competition Commissioner and currently the Executive Director of the Zambian Competition & Consumer Protection Commission, said that antitrust law in Africa’s largest economy “would be great indeed,” noting the “many benefits in having a competition law.”

Pr1merio director Andreas Stargard likewise promoted the idea of establishing an antitrust regime in West Africa’s dominant economy. He wrote in an article aptly entitled “Nigerian antitrust?“:

Today, AfricanAntitrust adds its voice to the steady, though infrequent, discussion surrounding the possibility of a Nigerian competition-law regime.  In our opinion, it is not a question of “if” but “when”, and perhaps more importantly, “how“?

“If”: it is a virtual certainty that sooner or later, the drivers of growth in the Nigerian economy (innovators, IPR owners and applicants, upstarts, and foreign investment) will succeed in their demands for an antitrust law to be enacted.

“When”: it’s been debated in Nigeria since at least 1988; there was another push in the right direction in 2002; and, since then, at least a steady trickle of intermittent calls for a central antitrust regulator, often coming loudest from the outside (as does this post). This general time line coincides with that of other developing or now emerging competition-law jurisdictions, and we believe it is now a question of years, not decades, until a Nigerian Sherman Act will see the legislative light of day. Our (admittedly unscientific) prediction is that Nigeria will have a competition-law regime prior to 2020. (Note: the latest of up to six bills introduced to date, the Competition and Consumer Protection Bill, has been languishing in the Nigerian Senate since 2009).

“How”: this is the kicker — the most interesting bit of the Groundhog Day story this would otherwise be and remain. The intriguing part about reigniting the discussion surrounding Nigerian antitrust law is that we now live in the age of COMESA and more importantly here, the COMESA CCC (Competition Commission).

This opens up new opportunities that may not have been envisaged by others in the 1990s or 2000s. For example: will the economies of West Africa band together and create a similar organisation, notably with “legal teeth”, which might include provisions for a centralised enforcement of antitrust? Will it be under the auspices of ECOWAS or UEMOA? A monetary union has been known to be an effective driver of ever-increasing competition-law enforcement elsewhere in the world (hint: Brussels)…

If the answer to these crucial questions is “no”, what are the consequences to the Nigerian economy? Will Nigeria continue on its path to outsider status when it comes to healthy economic regulation — despite its powerhouse status in sub-Saharan Africa? Will this add to the disincentive against increased foreign investment, akin to the prevalent oil and diesel-stealing that occurs ’round-the-clock and in the open? Will businesses — other than former state monopolies, now privatised and firmly in the hands of oligarchs, or cartelists — continue to accept being deprived of the economic fruit of their labour, without protection from certifiably anti-competitive behaviour? Will other state agencies continue to step in and act as quasi-enforcers of antitrust, as they have done in the past (the Air Cargo cartel is an example), filling the void of a central competition commission?

Godfrey-Orkeh
Chief Executive Officer of African Cable Television, Mr. Godfrey Orkeh

Below, we excerpt a few of Mr. Orkeh’s pertinent comments on the issue, in which he discusses the lack of any monopolisation offence under Nigerian law and the high barriers of entry in the television and media sector he and his company have faced while challenging the incumbent domestic TV provider.

The number one challenge in the industry is that there is no regulation, NBC is doing its best but there is no act of law that backs the activities up. Before the last government handed over, there was a bill that was being pushed, [competition-law] bill like what we find in Europe that nobody can own 100 per cent of an industry, if you grow beyond a particular size, for instance when Microsoft, Google among others grew beyond a certain size, they were stopped to allow room for other players. There is no such law right now in Nigeria so it is a big barrier; it is only legislature that can change that. … This is good for the economy and the customers.

We knew there is a monopolistic tendency in the market, the existing structure in the legislature of Nigeria allows a dominant player to take advantage of the environment, before we came to the market. There was no pay TV offering PVR for the middle class and for you to get decoder with PVR you have to cough out about N70, 000 but we are saying with N15, 000 you can have a PVR. And content-wise there was a lot of exclusivity which is going to be difficult for one person to break. Beyond this, we will develop the market for our self, develop a niche for our self because right now the tendency is also thriving in the industry, Nigeria with a population of about 170 million, 26 million households with television, but the market is so huge. There is still a huge market that is not being addressed, we are here to capture that niche market and grow it. … [] Nigerians are the only ones that can take a stand as far as monopoly is concerned, and we have started seeing that in recent social media reactions about what is happening in the industry.  If we don’t have a choice there will always be a monopoly even if it is only a player that is that market, but you’ve created an avenue for two to three players to play in the market, there would be options like what we see in the telecoms sector, where I can port my number, which I believe has  taken efficiency to another level. So we are getting to a point where with digitisation every Nigerian would be exposed to as many channels as possible.  But the fact remains that the market is a huge segment. It is too huge to be monopolised.

Outside of AAT’s own resources on the prospect of a future Nigerian antitrust law, we refer our readers to the following resources for further reading on this topic:

  1. http://www.globalcompetitionforum.org/regions/africa/Nigeria/antitrust%20article.pdf
  2. http://afro-ip.blogspot.be/2011/11/iprs-and-competition-law-nigerian.html
  3. http://www.cuts-ccier.org/7up4/NTW-Nigeria_media.htm

Nigerian antitrust?

Posted on by andreasstargard

nigeria
Today, AfricanAntitrust adds its voice to the steady, though infrequent, discussion surrounding the possibility of a Nigerian competition-law regime.

In our opinion, it is not a question of “if” but “when”, and perhaps more importantly, “how“?

“If”: it is a virtual certainty that sooner or later, the drivers of growth in the Nigerian economy (innovators, IPR owners and applicants, upstarts, and foreign investment) will succeed in their demands for an antitrust law to be enacted.

“When”: it’s been debated in Nigeria since at least 1988; there was another push in the right direction in 2002; and, since then, at least a steady trickle of intermittent calls for a central antitrust regulator, often coming loudest from the outside (as does this post). This general time line coincides with that of other developing or now emerging competition-law jurisdictions, and we believe it is now a question of years, not decades, until a Nigerian Sherman Act will see the legislative light of day. Our (admittedly unscientific) prediction is that Nigeria will have a competition-law regime prior to 2020. (Note: the latest of up to six bills introduced to date, the Competition and Consumer Protection Bill, has been languishing in the Nigerian Senate since 2009).

“How”: this is the kicker — the most interesting bit of the Groundhog Day story this would otherwise be and remain. The intriguing part about reigniting the discussion surrounding Nigerian antitrust law is that we now live in the age of COMESA and more importantly here, the COMESA CCC (Competition Commission).

This opens up new opportunities that may not have been envisaged by others in the 1990s or 2000s. For example: will the economies of West Africa band together and create a similar organisation, notably with “legal teeth”, which might include provisions for a centralised enforcement of antitrust? Will it be under the auspices of ECOWAS or UEMOA? A monetary union has been known to be an effective driver of ever-increasing competition-law enforcement elsewhere in the world (hint: Brussels)…

If the answer to these crucial questions is “no”, what are the consequences to the Nigerian economy? Will Nigeria continue on its path to outsider status when it comes to healthy economic regulation — despite its powerhouse status in sub-Saharan Africa? Will this add to the disincentive against increased foreign investment, akin to the prevalent oil and diesel-stealing that occurs ’round-the-clock and in the open? Will businesses — other than former state monopolies, now privatised and firmly in the hands of oligarchs, or cartelists — continue to accept being deprived of the economic fruit of their labour, without protection from certifiably anti-competitive behaviour? Will other state agencies continue to step in and act as quasi-enforcers of antitrust, as they have done in the past (the Air Cargo cartel is an example), filling the void of a central competition commission?

We are curious to hear our readers’ opinions.

Comment below or e-mail us directly (a.stargard [AT] primerio.international & j.oxenham [AT] primerio.international)