As a result of the NCC’s interpretation of the historic thresholds, very small transactions were being notified, often with minimal or no impact on the Namibian economy. This arguably resulted in a misdirection of the NCC’s focus and resources. For example, offshore transactions involving a foreign acquirer with no presence in Namibia would trigger a Namibian notification, even if the target firm operated primarily outside Namibia, but derived just N$10 million in annual revenue from Namibia.
After reviewing international best practices, thresholds of comparable jurisdictions and reflecting on its own experiences over the last three years, the NCC has moved to address these shortcomings by publishing the below superseding thresholds, effective 21 December 2015.
In terms of the current regime, a merger will only be notifiable if:
- the combined values of the merger parties, being the highest combination of assets or revenue of the acquiring and target groups, meets or exceeds N$30 million; and
- either the gross assets or revenue of the target group meets or exceeds N$15 million.
The changes slightly raise the monetary thresholds (from N$20 million and N$10 million respectively) but more importantly, clarify that both thresholds need to be met to trigger a merger. Whether however the new thresholds manage to capture a material presence remains open for debate!