COMESA, draft, settlement

CCC draft Guidelines (no. 2/3): ‘Hearing Procedure’

COMESA Competition Commission seeks input on Determination of Hearing Procedure Guidelines

By Gina Lodolo

We previously published an analysis of the regional antitrust enforcer’s recently-published “Settlement Guidelines”.

In this article, we briefly discuss the Hearing Procedure draft which has been published (in addition to the Administrative Penalties Procedure and Settlement Guidelines).  The draft Guidelines have been published for public stakeholder comments due by 12 November 2021. Fundamentally, the COMESA Competition Commission (“CCC”) emphasizes that, during its investigative proceedings, the principles of natural justice must be adhered to, in the sense that the parties have the right to be heard.

Hearings will be conducted during either of the following stages:

  1. The hearings during the investigations process;
  2. Hearing by the Director before publication of notice of compulsory recall of defective goods; and
  3. Hearing before the Committee for the Initial Determination (“Committee”) of cases.

The CCC notes that in regard to hearings for the initial determination of cases, hearings are not intended to be the major source of information because the primary method of information gathering will be gleaned from responses received from the
“Notice of Investigation” that will first be sent in terms of  Article 21(6)(a) and 22(1) of the Regulations.

When will the CCC hold hearings?

  1. May hold hearings during investigations (at any time);
  2. Shall hold a hearing:
    • Before making recommendations;
    • Before taking decisions; and
  3. (In its consumer-protection role only:) Before the CCC publishes a notice of a compulsory product recall.

Hearing procedure once it has been determined that a hearing will be held

  1. The CCC shall give fifteen working days notice to all of the parties involved;
  2. A notice will be published to invite interested parties;
  3. Notice of the main issue must be given within ten working days and will provide the main issues identified and the main questions that will be raised (any other questions may still be raised at the hearing as long as “they are reasonably related to the matter under investigation.

During the Hearing

  1. The Committee will test the evidence before it and interrogate the CCC’s team that conducted the investigation.
  2. The party under investigation will also be provided the opportunity to:
    • Clarify and develop the evidence that it provided during the investigation;
    • Comment on and rebut evidence and information supplied by other parties; and
    • Make further representations, which may, in relevant cases, address the question of whether a practice has public benefits that may offset any adverse effects on competition.

After a Committee has been convened to hear the matter:

  1. Any party required to attend the hearing must be given twenty-one days’ notice of the hearing date.
  2. Upon application by a party, a pre-hearing can be requested to confirm that all of the parties can attend the hearing and have received all documentation relied on by the other party.

After the conclusion of the hearing, a decision will be made by the Committee within forty-five days. If the Committee finds that the respondent has breached the Rules or Regulations, in “appropriate instances” a remedy can be discussed.

Any party has a right of appeal and will do so in accordance with Rule 24(d), (e) and (f) of the COMESA Rules, 2004.

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