22 February 2016 by Competition Alert

Transgressors fined for failing to notify mergers in Swaziland despite no monetary merger thresholds

The Swaziland Competition Commission (SCC) reported in 2015 that it detected two failures to notify mergers, which is a contravention of Swaziland competition legislation. This is despite the competition regime still not having monetary merger thresholds in place.

While the SCC reported that the offending parties paid penalties, the amounts were not disclosed. The statutory remedies for a failure to notify a merger in Swaziland are a fine up to 250,000 Emalangeni and/or imprisonment up to five years. The SCC also required the parties to notify the mergers post implementation so that it could have an opportunity to assess the impact of the transactions on the relevant markets.

Swaziland’s competition regime has only been in existence for a few years and the merging parties claimed their omission to notify the transactions was because they were unaware of the competition laws.

The SCC’s remedial action will no doubt serve to deter firms from electing not to comply with merger notification obligations in Swaziland, but will also hopefully create greater awareness of these obligations, especially in respect of smaller transactions that may not seem to warrant notification. Although one cannot fault a regulator for enforcing its jurisdiction to consider mergers, a key lacuna remains the failure to set monetary thresholds for notification, which would go some way to draw a balance between effective regulation and unnecessary red-tape.

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