Tag: antitrust

Empowering Competition: The Launch of Market Inquiry Guidelines and the New Era for Mauritian Markets

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By Megan Armstrong

On 31 March 2026, the Competition Commission of Mauritius reached a significant regulatory milestone with the publication of its Guidelines on Market Inquiries (CC 8 Guidelines). These Guidelines have been published following recent amendments to the Mauritius Competition Act of 2007, and provide a formal roadmap for the Commission to examine entire sectors of the Mauritian economy, rather than focusing solely on individual firm misconduct.

Why these Guidelines are Important

The introduction of these Guidelines mark a shift from reactive to proactive enforcement. Historically the Competition Commission of Mauritius has focused on investigating specific restrictive practices, such as cartels or abuse of monopoly power. However, many markets fail to deliver competitive outcomes due to structural issues, regulatory barriers or complex consumer behaviour, even in the absence of a specific law-breaking act.

Alignment with Recent Developments

The publication of these Guidelines is not an isolated event, but a strategic move. Over the past few months the Competition Commission of Mauritius has intensified its focus on modernising its oversight of the Mauritian economy.

The Guidelines arrive mere weeks after the Mauritian Competition Commission released its Digital Market Landscape Report, which reviewed market conditions across various digital platforms, signalling the Commission’s intent to monitor these high-growth and complex sectors.  

The Commission was officially vested with the power to conduct market inquiries following an amendment to the Competition Act in September 2025. The CC 8 Guidelines serve as an operational manual for these newly granted powers to transform the legal text into a functioning regulatory tool.

The start of 2026 has seen the Commission host the first meeting of the Tripartite Technical Committee, and the collaborative ethos of this meeting is echoed in the CC 8 Guidelines, which emphasise the importance of working with other regulators and government bodies to implement the recommendations that arise from market inquiries.

Conclusion

By formalising the market inquiry process, the Competition Commission of Mauritius is moving towards a more sophisticated and transparent model of economic regulation. As Mauritius navigates the complexities of digital transformation and global economic shifts, these guidelines provide the ‘rulebook’ necessary to ensure that markets remain open, innovative and fair to all consumers.

FUEL AT THE BOILING POINT: Competition Commission Issues Price Gouging Warning

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By Megan Armstrong and Matthew Freer

South African consumers have received warning to expect oil price hikes from 1 April 2026, at a time when households are already price-constrained and cost-conscious. Naturally, as oil prices increase, consumers can reasonably expect these hikes to be passed down through corresponding price increases on the respective goods and services. The question to business is how much of an increase is reasonably permitted within the ambit of competition law, and what should the timing of such an increase be?

The Commission’s Warning

In response to the anticipated price volatility, the Competition Commission of South Africa (the “Commission”) has issued a media statement warning of heightened risks of price gouging across several sectors. The Commission stated the following:

“The risk is prevalent for unregulated fuels such as diesel retail prices and jet fuel; oil-based products such as nitrogen-based fertilisers and plastics; fuel-intensive services such as air, land and sea transport and logistics; and all other products and services that rely on these inputs, particularly food products and delivery services.”

Additionally, the Commission set out clear rules for businesses navigating the looming price increase:

  • “Businesses may not increase prices in anticipation of future fuel cost increases; they may only increase prices once they experience actual fuel cost increases.
  • Businesses that experience fuel cost increases may only increase their prices in proportion to the actual fuel cost increases they experience.
  • In effect, these two conditions mean that product or service margins after the surge in fuel prices should be no higher than the margins prior to the fuel price increase.
  • Furthermore, once fuel costs decline, product or service prices should decline immediately.”

What is Price Gouging?

Price gouging is the act of charging customers unreasonably high prices for goods or services typically in response to a crisis, natural disaster or demand shock where consumers have few alternatives and the product is a necessity. This behaviour sits at the intersection between business ethics and consumer protection in considering exploitation of a demand spike to maximise profits.

South Africa’s legal approach to this issue does not use the term “price gouging” directly in its primary statutes, rather the framework is built upon two distinct pillars. The first pillar is found in the Competition Act 89 of 1998. Section 8(1)(a) of the Act prohibits a dominant firm from charging an “excessive price to the detriment of consumers or customers”, a definition refined by the Amendment Act of 2018 to mean “higher than a competitive price” and where such a difference is “unreasonable”, targeting firms with substantial market power which abuse their dominance. The second pillar is enshrined in the Consumer Protection Act 68 of 2008. Sections 40 and 48 of this Act prohibit suppliers from engaging in unconscionable conduct and from supplying goods or services “at a price that is unfair, unreasonable or unjust”. This provision has a broader application, as it does not require a firm to be dominant. It applies to any supplier who takes unfair advantage of a consumer.

Considering the existing legislative framework on price gouging behaviour in South Africa, price gouging is then defined as the practice of increasing prices on essential goods or services during a declared disaster or crisis to a level that:

1.         Does not correspond to increased costs of providing the good or service; or

2.         Exceeds pre-crisis profit margins without justification; and

3.         Takes unfair advantage of those consumers with limited alternatives as a result of the emergency situation.

Lessons from COVID-19

The most significant development in South Africa with regards to price gouging came in response to the COVID-19 pandemic. On 19 March 2020, the Minister of Trade and Industry, Ebrahim Patel, published the Consumer and Customer Protection and National Disaster Management Regulations and Directions (the “Regulations“). They were designed to prevent an escalation of the disaster and to protect consumers from exploitative commercial practices during this period of vulnerability.

The Regulations formalised a cost-based test for determining excessive or unfair pricing, that a material price increase of an identified good or service will be considered indicative of excessive pricing if:

  • it “does not correspond to or is not equivalent to the increase in the cost of providing that good or service“; or
  • it “increases the net margin or mark-up on that good or service above the average margin or mark-up for that good or service in the three month period prior to 1 March 2020“.

Furthermore, the Commission’s 2021 Guide for Business Compliance with Price Gouging Regulations, emphasised that during a disaster, price increases must be strictly proportionate to cost increases, and businesses must not exploit temporary demand surges to inflate profit margins.

The Commission’s willingness to act was demonstrated early in the pandemic in the Babelegi case, where a firm was found liable for excessive pricing after increasing mask prices by over 1 000% while its own supply costs remained unchanged.

In essence, South Africa’s legal framework defines price gouging not by the final price itself but by seller behaviour, where an unjustified cost increase representing abuse of a temporary situation in which consumers are a captive market and desperate for essential goods and services. A framework established during COVID-19 now guides current pricing conduct and sheds some light on how the Commission would evaluate seller behaviour in relation to demand shocks arising from emergencies, natural disasters, or market disruptions.

What Businesses Should Do

Business should be mindful of not increasing prices in anticipation of the impact of the oil price increase and engage in corresponding price increases once these price increases have a clear and quantifiable impact on internal pricing mechanisms.

The wider public does have recourse available to contact the Commission, should it appear that a business is engaging in price gouging behaviour, or has responded too erratically to the market disruptions caused by the sudden spike in the oil price. The Commission has stated the following: “Given the heightened risk of price gouging during this period of oil price volatility, the Commission calls on the public and businesses to report instances where they believe price gouging is occurring so that the Commission can investigate.”

Ultimately, the lesson from COVID-19 remains unchanged in that price increases have to be justified by evident supply cost increases and not by opportunity. As the Commission has made clear, anticipation pricing and margin expansion will not be tolerated.

COMESA Snapshot: How have the COMESA Draft Regulations changed its competition regime?

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By Gina Lodolo & Tyla Lee Coertzen

On 24 January 2024, the COMESA Competition Commission (the “CCC”) issued a press release requesting comments to its proposed Draft Regulations (as amended in November 2023) (“Draft Regulations”).

The Draft Regulations contemplate an over hall of many key features of the CCC’s current competition regime, which has been in place since 2014. The Draft Regulations, importantly, make provision for the CCC to act as a consumer protection agency as well as an antitrust enforcer. While the consumer protection provisions have also been significantly bolstered, this article provides an overview of the salient aspects that the Draft Regulations seek to change vis-à-vis the competition regime. We highlight the key proposed amendments in this article.

Merger Control Regime:

  • One of the most salient amendments to the regime is contained in Article 37, which proposes to change the CCC’s merger control regime from non-suspensory to suspensory. In this regard, when the amendment comes into effect, notifiable mergers cannot be implemented by parties before approval is obtained from the CCC.

Previously, a party to a merger was required to notify such a merger within 30 days from the date of the ‘decision to merge’ (which date has generally been considered by the CCC to be the date any agreements underlying a merger were signed by parties). With the introduction of a suspensory regime, the 30-day rule is expected to fall away, thereby alleviating the pressure off of merging parties to ensure timeous notification of a merger with the CCC.

However, under the current regime, the CCC has a review period of 120 calendar days, with the ability to extend the review period for a maximum of 90 days. Importantly, the Draft Regulations do not envisage a shorter review period, and given that the regime is to be amended to a suspensory one, such a review period could result in significant delays in global transactions, particularly as the old regime was non-suspensory. In its Draft Regulations, the CCC has, however, contemplated a simplified procedure where a merger does not give rise to significant competition or public interest concerns.

  • In the Draft Regulations, the threshold for the definition of a merger has been heightened through the introduction of a change of control of a firm being on “a lasting basis”. 

The definition of a ‘merger’ also now expressly includes joint ventures, that perform on a long-lasting basis all the functions of an autonomous economic entity. In this regard, the Draft Regulations bring the notifiability of joint ventures largely in line with European case precedent. Thresholds have also been introduced for joint ventures whereby a joint venture will be notifiable if it intends to operate in two or more member states, at least one parent of the joint venture operates in one or more member states and the thresholds are met.

  • Interestingly, the Draft Regulations introduce separate thresholds for firms operating in digital markets. In this regard, the Draft Regulations contemplate that a prescribed transaction value be met, as opposed to the more traditional asset/turnover value thresholds.
  • The CCC has also introduced broad powers under Article 38(3) to conduct an investigation where it believes that a merger has been implemented without approval and where the CCC finds that a merger has been implemented prior to approval, a penalty of up to 10% of the merging parties’ annual turnover in the Common Market may be imposed.
  • Another important contemplated amendment is found in Article 40, which provides COMESA Member States with an opportunity to request that a merger be considered under its national competition law within 21 days of receiving notice of the merger from the CCC. The relevant Member State must, however, demonstrate that the merger is likely to disproportionality reduce competition to a material extent in the Member State before the CCC determines whether it will allow the referral in whole or part. Similarly, the CCC may refer a merger for independent consideration to any Member State.
  • The CCC has introduced significant consideration for public interest factors when considering mergers. These include, inter alia, the effect on employment, ability of small and medium sized businesses to be competitive, ability to compete in international markets, environment protection / sustainability considerations and innovation. The latter two considerations are a rather novel concept that the CCC is seeking to introduce, and which has been introduced more prominently in the European Union. The consideration of public interest factors could, however, lead to unintended consequences such as introducing uncertainty and subjectivity / favouring short term public interest considerations at the behest of long-term growth for the greater public interest benefit. Following finalisation of the Draft Regulations, the CCC will publish Public Interest Guidelines which may give guidance in relation to the CCC’s extent of its public interest considerations.
  • The Draft Regulations apply to mergers that meet the relevant threshold, and additionally, where a merger is non-notifiable, the Regulations will still apply to mergers that are likely to restrict competition in the Common Market or any substantial part of it- this may introduce some uncertainty over when the CCC will exercise jurisdiction over mergers that do not meet the statutory thresholds. This seems to be an indication that the CCC is trying to avoid situations of ‘merger creep’ in the digital platform markets.

Market Inquiry powers:

  • The Draft Regulations introduce the powers of the CCC to conduct ‘market inquiries’, in order to inquire into issues affecting consumers or the general state of competition without necessarily referring to the conduct or activity of any particular undertaking.
  • On the basis of the CCC’s findings following the conclusion of a market inquiry, the CCC may initiate a formal investigation, enter into agreements with or order undertakings to implement remedies aimed at addressing the CCC’s concerns, make policy recommendations, conduct advocacy initiatives or take further actions within its powers.  
  • The Draft Guidelines further obligate COMESA Member States to assist the CCC with its investigations, market inquiries or studies within their territory when requested, which investigations, market inquiries or studies may be conducted jointly or under the CCC’s guidance.

Settlement:

  • The Draft Regulations introduce the ability of the CCC to develop procedures to negotiate settlements, however, salient features of a (binding) settlement provided for in the Draft Regulations are as follows:
    • there must be an acknowledgment for engagement or participation in conduct that violated the Regulations;
    • liability in respect of conduct is acknowledged; and
    • agreement with the CCC’s findings to avoid lengthy standard procedures.

Anti-competitive agreements:

  • The Draft Regulations provide that anti-competitive agreements can attract a fine of up to 10% of annual turnover in the Common Market for each of the participating undertakings (previously penalties were determined by the Rules).
  • Public interest factors will be taken into account when assessing potentially anti-competitive agreements, including the novel consideration of the effect on environmental protection and sustainability (it is not clear whether these will be considered for purposes of aggravating or mitigating circumstances).
  • Public interest factors will also be considered when considering whether the CCC will grant an application for authorization for a firm to enter into an agreement even if the agreement is anti-competitive, if the benefits from the agreement outweighs the anti-competitive effects.
  • Minimum resale price maintenance has been introduced as a per se contravention. The Draft Regulations do not delineate whether a minimum price may be recommended as long as it is not enforced (such is the case in the South African Competition Act).

Abuse of dominance:

  • Article 31 of the Draft Regulations introduces a presumption of dominance threshold of 30%. This is a low market share threshold in circumstances where market power does not also need to be established. The CCC will also give consideration to firms operating in digital markets wherein data quantity, accessibility, control and network effects will be relevant considerations.
  • An additional violation for an abuse of dominance has been added for applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage.
  • Article 33 of the Draft Regulations introduces a separate violation for an abuse of ‘economic dependance’. The reference to ‘gatekeepers’ infers that this Article could be targeted towards digital platforms /markets.

Cartel conduct:

  • A leniency policy has been introduced by the CCC. This is particularly welcomed as it will assist in avoiding applying for leniency across multiple jurisdictions, which usually results in firms being disincentivized to apply for leniency where results are uncertain. The CCC will develop Guidelines for the implementation of the leniency programme.

General other proposed amendments include:

  • Obligations of Member States will become more extensive under Article 7 of the Draft Regulations and the Draft Regulations clearly provide that decisions of the CCC will bind Governments of Member States as well as State Courts.
  • The CCC is set to be renamed as the COMESA Competition and Consumer Commission and will thus increase its focus in relation to consumer protection related matters.
  • Stringent appointment requirements and procedures for members of the Board of the CCC have been introduced.
  • Article 17 introduces the appointment of an Executive Director to act as the chief executive officer of the CCC. The Executive Director will not be subject to the direction or control of any other person or authority.
  • The Executive Director is provided with various new powers, including:
    • the powers to conduct market inquiries into matters affecting competition and consumer welfare.
    • The ability to negotiate and conclude settlement and commitment agreements through the Executive Director, largely solidifying negotiations that already take place in practice.
    • The power to make interim orders, conduct dawn raids, issue comfort letters and issue advisory opinions.
  • The Draft Regulations provide the Board with the power to issue block exemptions (subject to approval of the Council, through the Bureau), exempting any category of agreements, decisions, and concerted practices from the application of Article 29 of the Regulations.
  • The CCC now has the power to enter into, search and inspect any premises, including a private dwelling where the CCC reasonably suspects that information or documents that may be relevant to an investigation are kept.
  • Interim orders can be made in matters of urgency, pending the conclusion of an ongoing investigation where there is a risk of serious irreparable damage to competition or consumer welfare or to protect the public interest.

Asked to comment on the proposed Regulations, Primerio director, Michael-James Currie says “the proposed amendments go a long way to bringing the COMESA antitrust regime in keeping with most jurisdictions with well established competition law enforcement. The removal of finite penalty caps in favour of a common “10% of local turnover” threshold, the (eventual) introduction of a leniency policy and introduction of a suspensory merger regime are welcomed. The ambiguity created by the current regime (which requires a merger to be notified within 30 days after a decision to merge has been taken) can be impractical and served little benefit. Companies operating within the Common Market will need to re-evaluate their commecrial operations from a compliance perspective as the risk matrix will change considerably”. Currie went on to say that these proposed Regulations are a continuation of the strong leadership shown at the CCC under CEO Willard Mwemba, and that he expects to see more enforcement activity by the CCC over the next two years.

The time to provide comment to the Draft Regulations has been extended to 14 March 2024.  The Draft Regulations can be accessed here.

Nigerian Competition Law: FCCPC Publishes Penalty Guidelines

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By Michael-James Currie and Jemma Muller

Nigeria is quickly emerging as one of the more important antitrust regimes on the African continent. Not only because it is a significant market, but largely due to a raft of recent legislative developments. The Federal Competition and Consumer Protection Commission (“FCCPC”) has been formally established and is fully operational with the legislative tools to tackle and prosecute the traditional spread of competition law violations including restrictive horizontal practices, abuses of market power and conduct robust analysis in relation to its merger control regime.

The most recent publication by the FCCPC is its Administrative Penalties Regulations, 2020 (“Penalty Regulations”). The publication of these Penalty Regulations not only serve as stark reminder of the risks of non-compliance with the competition laws but also signals the start of an active enforcement regime.

The Penalty Regulations provide for a largely mechanical calculation for purposes of quantifying an administrative penalty. In essence, however, the Penalty Regulations provide for a prescribed “base amount” (which is either fixed fee or calculated as a percentage of turnover) and this base amount is increased (or decreased) based on aggravating and mitigating factors as well as taking the duration of the infringement into account.

Importantly, the penalties are calculated with reference to annual turnover. This is not qualified by local or Nigerian derived turnover only. There is a risk that when calculating administrative penalties a firms’ total worldwide turnover is taken into account. This poses a significant risk for foreign entities who might only have a relatively negligible presence in Nigeria but are significant players on the global market.

Failure to notify a mandatorily notifiable merger (i.e., gun-jumping or prior implementation) attracts a base penalty of 2% of the parties’ annual turnover. This includes a pure foreign-to-foreign merger (i.e. where parties are domiciled outside of Nigeria) but have a nexus to Nigeria by virtue of having a subsidiary in Nigeria or derive turnover in or from Nigeria.

The good news for foreign firms is that parties to a foreign-to-foreign merger (or to a merger which raises no overlapping business relationships) may apply to have their transaction assessed under an expedited review regime. The expedited regime envisages reducing the review period of a phase 1 merger by up to 40%. It is advisable to engage the FCCPC by way of the pre-merger consultation process in order to confirm whether a proposed transaction qualifies for an expedited review.

Over and above administrative penalties, firms operating in Nigeria should also note that the FCCPC has the powers to pursue criminal prosecution against firms and individuals who violate certain provisions of the legislation. These include provisions dealing with, inter alia, price fixing, conspiracy, bid-rigging, obstruction of an investigation or inquiry of the Commission, providing false or misleading information, the failure to give evidence or appear before the Commission, and the failure to comply with a compliance notice or order issued by the Commission.

Like most jurisdictions which adopt a new, novel or revamped competition law regime, there are several aspects of Nigeria’s legislation which would benefit greatly from precedent. But in relation to the primary obligations of firms operating in Nigeria, the fundamentals are clear and the consequences for contraventions are of sufficient import to ensure that Nigeria is placed on the compliance radar.

[Michael-James Currie is a partner at Primerio and specializes in competition law in several African jurisdictions including Nigeria. Please feel free to get in touch with Michael-James by sending an email to m.currie@primerio.international]