18 May 2016 by Cliffe Dekker Hofmeyr Competition Alert

Africa, watch out! Increased cooperation between regional and national competition agencies

Yesterday the COMESA Competition Commission (CCC) announced the signing of a Cooperation Agreement with the Competition Authority of Kenya (CAK). This marks significant progress as the CCC and the CAK have, in the past, been at loggerheads in apparent jurisdictional jousting. Last month the CCC also entered into Memorandums of Understanding on Cooperation in the Application and Enforcement of Laws with the Swaziland Competition Commission (SCC) and the Fair Trade Commission of the Seychelles (FTC). Seychelles, Swaziland and Kenya are all COMESA Member States, with the latter two having particularly active national competition agencies.

These agreements, which aim to enhance national and regional cooperation and enforcement across Africa, are reported to cover the following issues:

  • Where the agencies are investigating related matters, the organisations will cooperate and share any relevant information in order to ensure the effective enforcement of their respective competition laws. Periodic meetings will be held amongst officials in order to exchange this information.
  • The agencies will consult with each other on matters of competition enforcement and policy and similarly will keep each other up to date with any important policy/enforcement developments within their respective jurisdictions.
  • The agencies will cooperate in developing technical assistance and capacity building programmes.

The reports on the agreements are eerily silent on avoiding duplicated merger filings, where both regional and national merger thresholds are met. Clarity in this regard would be welcomed, particularly in respect of Kenya who had apparently previously disputed COMESA’s ability to oust its national jurisdiction on the merger front.

While some form of cooperation, in the context of dual jurisdiction, is always implied, these agreements evidence a strong intention to formalise the relationships between the organisations. There are benefits in sharing best practices, exchanging lessons learnt, and offering support.

The focus on enforcement is also clear, and business can now assume that information submitted to a national
agency may well be shared with the CCC and vice versa. This will likely have implications for detecting the prior implementation of mergers and cross-border anti-competitive conduct.

The CCC has announced that it intends to sign more cooperation agreements of a similar nature with other COMESA Member States. Beware, Africa is gearing up for greater competition enforcement!

Written by Susan Meyer and Sean Jamieson

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