The Common Market for Eastern and Southern Africa (“COMESA”) Competition Commission (“Commission”) has not proposed or enacted any amendments to its COMESA Competition Regulations of 2004 (“COMESA Regulations”). However, the Commission has suspended the sections in its Merger Assessment Guidelines relating to its Phase 1 and Phase 2 merger assessment review periods as of 6 February 2020. It is currently consulting Member States to arrive at more optimal review periods.
On 11 February 2021, the Commission issued a Practice Note in which the Commission amended its interpretation of the term “operate” to mean that a party will operate in COMESA, merely if it is active in within the region. There is no minimum threshold or asset threshold. This interpretation will mean that many more transactions will fall within the scope of the COMESA Regulations’ merger control regime.
On 2 September 2021, the Commission issued a Practice Note on Procedure for the Conduct of Hearings before the Committee on Initial Determination (“CID”). This note seeks to provide clarity and legal certainty on the procedures to be followed in the conduct of hearings before the CID by the parties to an investigation.
The Commission also called for comments on its Draft Guidelines on Fines and Penalties, Draft Guidelines on Settlement Procedures and Draft guidelines on Hearing Procedures, respectively. The period to submit comments ended on 12 November 2021.
Yes. The COMESA Competition Rules allows the Commission to initiate inquiries into sectors of the economy. The Commission has initiated 10 market studies / inquiries to date.
Yes. The Commission has published a press release where it expressed concern in respect of the airline industry. Specifically, the Commission stated that airlines were forcing customers to comply with terms that were contrary to the COMESA Competition Regulations and urged them to cease such conduct.
The Commission has previously launched investigations into the following sectors as well:
- pharmaceutical;
- construction;
- beverage (both alcoholic and non-alcoholic);
- shipping;
- aviation;
- money transfers;
- agriculture and agribusiness; and
- sports (in relation to the commercialisation of media and marketing rights of football events).
Subject to the response to question 3, the Commission has not identified such sectors.
No.
The Commission published a Notice of Interim Measures in Merger Review of the COMESA Competition Commission due to the COVID-19 Pandemic. These measures related to, inter alia, the issues listed below.
a) Encouraging parties to mergers to submit notifications and filing of mergers and acquisitions electronically.
b) Considering the initial engagement with the Commission (even in the absence of a complete notification where the gathering of information is affected by the pandemic) to constitute notification and not, therefore, penalising parties for failing to submit complete information within the 30 day period provided by the legislation.
c) Suspending onsite investigations and face-to-face meetings, although consultations and meetings can still be held using teleconferencing facilities.
d) Extending the 120-day investigation period where travel bans, lockdowns, and other pandemic-related factors affect the ability of the Commission to complete its investigation within the 120-day period.
No.
No.