Merger Control Developments | Côte d’Ivoire | Africa Competition Guide

Have any notified transactions been prohibited by the competition authority in your jurisdiction since January 2021? If so, on what basis?

The WAEMU Commission has exclusive jurisdiction in relation to merger control within its Member States. The Competition Commission has only subsidiary powers in this matter, mainly to assist the WAEMU Commission. There is no publicly available information regarding any transaction notified to the WAEMU Commission that has been prohibited since January 2021.

Are there official proposals to amend merger filing fees and/or monetary thresholds or have such amendments been affected?

No. There is no publicly available information regarding official proposals to amend merger filing fees and/or monetary thresholds.

Is the submission of a merger notification suspensory and mandatory in your jurisdiction? If so, has the authority brought any cases against entities accused of gun-jumping and/or prior implementation of a notifiable transaction? If so, kindly provide details.

Not all mergers are subject to control by the competition authorities. The WAEMU Regulation deals only with mergers which could lead to an abuse of a dominant position. Thus, a merger is likely to be censored by the WAEMU Commission only if the operation (i) creates or strengthens a dominant position; and (ii) has the effect of significantly impeding effective competition within the common market.

The submission of a merger notification is not mandatory, however, parties to a transaction are required to notify the transaction to the WAEMU Commission if they wish to avail themselves of the benefit of an exemption or a negative clearance.

The merger notification is not suspensory. Regulation no. 02/2002/CM/UEMOA provides that no fine can be pronounced for acts implemented after notification to the WAEMU Commission and prior to the decision by which the WAEMU Commission grants or refuses to grant an exemption, provided that they remain within the limits of the activity described in the notification. This provision implies that the parties can implement the operation described in the notification without waiting for the WAEMU Commission’s decision. However, when implementing the transaction prior to clearance, parties run the risk of being ultimately refused the benefit of the negative clearance or exemption and may be required to re-establish the preexisting legal situation.

Is the submission of a merger notification non-suspensory and voluntary in your jurisdiction? If so, has the authority brought any cases against entities for failure to notify a transaction post-completion within the stipulated time period? If so, kindly provide details, including details of instances where the authority has specifically requested notification of mergers.

The submission of a merger notification is non-suspensory and voluntary. There is no publicly available information regarding any cases by the WAEMU Commission has yet to bring a case against entities for failure to notify a transaction post-completion.

Please describe any cases in which the competition authority fined any entity for failing to comply with merger conditions.

There is no publicly available information regarding any case in which the WAEMU Commission fined an entity for failing to comply with merger conditions.

Please describe any cases in which the acquisition of shares or assets of another firm was interdicted by the competition authorities in your jurisdiction, as well as the basis for this.

There is no publicly available information regarding any case in which the acquisition of shares or assets of another firm was interdicted by the WAEMU Commission.

Please describe any cases in which parties (acquirer and target) did not have physical presence in your jurisdiction and the transaction was nonetheless notified. For example, where either party makes sales and derive some turnover in your jurisdiction do not have any subsidiaries or assets in the country, what is the local nexus test /local effects test to establish merger review jurisdiction?

There is no publicly available information regarding such cases.

Has the authority approved any mergers subject to novel or otherwise noteworthy conditions?

There is no publicly available information regarding any case in which the WAEMU Commission approved a merger subject to novel or otherwise noteworthy conditions.

Please indicate whether the competition authority has required notification of internal restructurings (that do not involve a change in ultimate control) and, if so, on what basis.

There is no publicly available information regarding any such case.

Please indicate whether an obligation to notify could be triggered as a result of a change in direct control over an entity through the interposition of a new entity within the group, albeit that the restructure does not result in a change in ultimate control.

According to Section 4.3 of Regulation No. 02/2002/CM/UEMOA, the WAEMU antitrust legislation applies to:

a) a merger between two or more undertakings previously independent;

b) the transaction whereby one or more persons who already control at least one company, or one or more undertakings, acquire directly or indirectly, either through the acquisition of a stake in the capital or the purchase of assets or through a contract or any other means, the control of all or part of one or more other undertakings;

c) the creation of a joint venture performing on a lasting basis all the functions of an autonomous economic entity.”

As such, it is arguable that a change in direct control, within a group of companies, which does not affect change in ultimate control, does not trigger an obligation to notify, insofar as the new entity interposed does not already control another entity.

Please describe cases of mergers that have been approved subject to public interest grounds since January 2021 and kindly describe the nature of these public interest grounds.

There is no publicly available information regarding any case in which a merger has been approved subject to public interest grounds since January 2021.

Please describe cases where the competition authority has prohibited a merger transaction based on public interest grounds alone.

There is no publicly available information regarding any case in which the WAEMU Commission has prohibited a transaction based on public interest grounds alone.

Describe the circumstances in which ‘greenfield’ / joint ventures mergers are caught under the merger review regime, and kindly provide instances of such mergers that have been notified to and considered by the competition authority.

Joint ventures are caught under the merger review regime if the joint venture performs, on a lasting basis, all the functions of an autonomous economic entity and if the creation of the joint venture (i) creates or strengthens a dominant position; and (ii) has the effect of significantly impeding effective competition within the WAEMU common market.

Several joint venture mergers have been notified to the WAEMU Commission and are currently being reviewed. For example, the WAEMU Commission has been notified of a request for negative clearance or individual exemption by the companies Orange and MTN in the context of a project to create a joint venture called JVCO responsible for managing a technical interoperability platform between mobile money transfer services. The Commission has also been notified of a request for negative clearance from Orange Abidjan Participations S.A., NSIA Banque Côte d’Ivoire S.A. and Diamond Bank S.A. in connection with the creation of a joint venture called Orange Abidjan Compagnie S.A. which will develop its activity in the banking sector. The decisions of the WAEMU Commission on these notifications have not yet been made public.

Please indicate whether there are any circumstances in which non-controlling minority share acquisitions that have been found to constitute a notifiable merger and the basis for this.

There is no publicly available information regarding any case in which a non-controlling minority share acquisition has been found to constitute a notifiable merger.

On average how long does the authority in your jurisdiction take to approve a non-complex transaction? What about a complex one?

The WAEMU competition legislation provides for two types of proceedings, namely (i) a non-contradictory procedure; and (ii) a contradictory procedure.

In respect of a non-contradictory procedure, the WAEMU Commission has six months from the date of notification to grant or refuse a negative clearance or exemption. If, within six months of notification, no decision has been adopted by the WAEMU Commission, the WAEMU Commission shall be deemed to have implicitly adopted a negative clearance decision or an individual exemption decision depending on the case.

If the WAEMU Commission has doubts as to the compatibility of the agreement within the WAEMU common market, it may then decide to initiate the adversarial procedure. If, within 12 months of the initiation of the adversarial procedure, the WAEMU Commission has not adopted any decision; this silence shall be deemed to be an implicit decision of negative clearance or individual exemption.

Kindly indicate whether the competition authority enjoys the power to “stop the clock” for the review of a merger and under what circumstances can this happen. If so, please describe cases where the authority has stopped the clock.

The WAEMU Commission enjoys the power to “stop the clock” for a review of a merger. If, during the adversary procedure, provisional measures are adopted, the 12-month period (as mentioned in the response above) shall be suspended until the provisional measures expire.

Please indicate whether, legally or in practice, your competition authority allows for “Carve out” / “hold separate” arrangements (this means that where clearance is not obtained in your jurisdiction by a specific date, the acquirer would opt not to take over the company in your jurisdiction but will implement the transaction in countries where approval has been obtained. The target in your jurisdiction may be left behind with the sellers for future disposal separately). If so, kindly describe cases where this has happened.

Where a practice is brought before the WAEMU Commission, it may adopt provisional measures. Such measures may include the imposition of conditions necessary to prevent any potential anti-competitive effect and we assume the WAEMU Commission can, on this ground, allow for “carve out” arrangements. However, we are not aware of any such case.

Please indicate whether, legally or in practice, your competition authority allows for a transaction to close sequentially (for example: the shares in a target company, which triggers a filing requirement in your jurisdiction or which is active in your jurisdiction, will only be transferred after clearance in your jurisdiction has been obtained, while the shares in other companies affiliated to the target and operating in other countries thus do not trigger a filing requirement in your jurisdiction, shall be transferred as soon as clearances in those other relevant jurisdictions have been obtained (irrespectively of whether clearance in your jurisdiction has been obtained). If so, kindly describe cases where this has happened.

The WAEMU competition legislation does not expressly provide for provisions allowing for a transaction to close sequentially. However, this is not prohibited.

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