Have any notified transactions been prohibited by the competition authority in your jurisdiction since January 2021? If so, on what basis?
Local counsel are not aware of any such case.
Are there official proposals to amend merger filing fees and/or monetary thresholds or have such amendments been affected?
Local counsel are not aware of any such proposal or actual amendment.
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.
In principle, the submission of a merger notification is voluntary and non-supensive.
However, there is a risk that the transaction could be derailed if the notification is not made or the parties do not obtain a negative certificate from WAEMU Commission pursuant to Article 3.1 of Regulation No.3/2002/CM UEMOA regarding the procedures applicable to cartels and abuse of dominant position.
Pursuant to Article 4.3 if the WAEMU Commission “becomes aware of a concentration operation constituting a practice comparable to an abuse of a dominant position under the terms of Article 4.1, 2nd paragraph of Regulation No. 02/2002/CM/ UEMOA relating to anticompetitive practices within of WAEMU, the Commission may order companies either not to proceed with the proposed concentration or to restore the previous legal situation, or to modify or complete the operation or to take any measure likely to ensure or restore sufficient competition”.
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.
No, please refer to the response above.
Please describe any cases in which the competition authority fined any entity for failing to comply with merger conditions.
Local counsel are not aware of any such cases.
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.
Local counsel are not aware of any such cases.
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?
Local counsel are not aware of any such cases.
Has the authority approved any mergers subject to novel or otherwise noteworthy conditions?
Local counsel are not aware of any such instance.
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.
Local counsel are not aware of 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.
No. In these circumstances, a notification obligation cannot be triggered, since the operation envisaged does not, in principle, fall within the operations prohibited by the provisions of the WAEMU Treaty.
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.
Local counsel are not aware of approved mergers 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.
Local counsel are not aware of prohibited merger 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.
The Competition Law does not specify a particular provision relating to greenfield / joint ventures mergers. Local counsel are not aware of any such cases.
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.
Local counsel are not aware of any such circumstances. However, it is noted that the WAEMU treaty does not specify the degree of participation required to qualify a situation of abuse of a dominant position.
On average how long does the authority in your jurisdiction take to approve a non-complex transaction? What about a complex one?
It will take a maximum of six months from the date of the notification for the authority to approve a transaction. The law does not distinguish between a non-complex and a complex transaction.
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.
Local counsel are not aware of any such cases.
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 Competition Law does not specify whether transactions can close sequentially. In practice, local counsel are not aware of any case where the competition authority would have allowed a sequential closing.
