African Competition Law Update
We take a look at the latest developments in Competition Law in South Africa and Egypt as well as Sub-Saharan Africa, including Botswana, Kenya and Namibia.
Competition Law Development in South Africa
The South African Competition Commission (SACC), during 2016, formalised relationships with various other competition authorities around the world. The SACC concluded MOUs with the competition authorities of the Federative Republic of Brazil, the Russian Federation, the Republic of India, the People's Republic of China (BRICS members) as well as with the Directorate-General Competition of the European Commission and the CAK.
Introduction of criminal liability
On 22 April 2016 and 9 June 2016, respectively, Presidential proclamations were published in the South African Government that collectively brought into effect the criminalisation provisions of the Amendment Act. In terms of the Presidential proclamation of 22 April 2016, section 12 (as it relates to section 73A(1) to (4) of the Competition Act) came into operation on 1 May 2016 and in terms of the Presidential proclamation of 9 June 2016 section 13 of the Competition Amendment Act, 1 of 2009 came into effect on the date of publication of the notice.
With the coming into effect of these provisions of the Amendment Act, any director of a firm, or person in a position of management authority, could be subjected to criminal prosecution for cartel conduct engaged in by the firm if they were involved in the conduct, knew of the conduct and failed to take steps to remediate it, or caused the conduct to take place. If successfully prosecuted these individuals could be liable to fine of up to R500,000 or imprisonment for up to 10 years or both.
The coming into effect of these provisions raises question about whether firms will be willing to voluntarily engage with the Commission in respect of cartel conduct - especially whether firms will be willing to apply for leniency in terms of the SACC's Corporate Leniency Policy, as a leniency application would expose the executives and management of the relevant firm to criminal prosecution (as a successful leniency applicant is required to acknowledge that the conduct constituted a transgression of the provisions of the Competition Act that prohibit collusion). Even if the Commission wishes to certify a firm that cooperated with it is deserving of leniency, and make submissions to the National Prosecuting Authority in respect of leniency for any individual involved from prosecution, there will be no defined legal basis for a person to insist on being deserving of leniency.
The Competition Tribunal of South Africa (Tribunal) conditionally approved the multi-jurisdictional merger between two of the world's largest beer manufacturers, AB Inbev and SABMiller. Wide ranging conditions were imposed that are designed to address both public interest and competition concerns arising from the merger. The conditions include undertakings to:
- commit to procure inputs for the production of beer and cider locally;
- endeavour to protect and develop local suppler relationships;
- invest ZAR1 billion in agricultural development, enterprise development (thorough establishing and managing enterprise development programmes) and educational initiatives, amongst other;
- divest of its shareholding in Distell; and
- an indefinite undertaking not to retrench any employees as a result of the transaction;
- locate its regional head office in Africa in South Africa, and various other extensive undertakings.
- The CTSA also unconditionally approved a merger whereby all the independent Coca-Cola bottlers in South Africa would merge their operations. The conditions imposed were aimed at addressing various competition and public interest concerns and include undertakings in respect of
- the location of the merged entities head office in South Africa;
- the continued production of Appletiser in South Africa;
- entering into a subsequent empowerment deal to increase the black economic ownership in the company to 20% by 2011;
- investing R400 million in developing distribution and retail networks in South Africa (including small business training);
- maintaining local supply; and
- maintaining employment levels for a period of three years, amongst other extensive undertakings
Competition Appeal Court decision
The Competition Appeal Court of South Africa (CAC) decided, in a case on appeal, that silent participants in a meeting where cartel activity is proposed may themselves be guilty of collusion. In an appeal brought by two wholesalers of bicycles and bicycle parts, the CAC found that despite the discussion during the meeting pertaining to the retailers of the products agreeing to price fix, the fact that the wholesalers increased their recommended retail selling prices to facilitate the collusion between the retailers made the wholesalers just as guilty of collusion as the retailers.
Life Healthcare Group Proprietary Limited and Joint Medical Holdings Limited settled a case of the prior-implementation of a merger with the SACC for a record fine of ZAR10 million. This fine is the highest fine ever imposed to date for the failure to notify a merger to the South African competition authorities.
Competition Law Development in Egypt
The Egyptian Competition regime has witnessed numerous trends recently. These are the main developments and cases that took place in 2016 and first quarter of 2017.
The Egyptian Competition Authority (ECA) delivers an infringement finding against the Confédération Africaine de Football (CAF).
In January 2017, the ECA has delivered its infringement decision against CAF accusing it of abusing its dominant position by engaging in four different abusive conducts. Most importantly, the ECA accused CAF of tying football tournaments broadcasting rights into viewing bundles and forcing them on customers.
In addition, CAF has refused to supply its broadcasting rights to other TV broadcasters other than Lagardere and extended the eight years exclusive agreement with Lagardere for 12 more years.
The ECA issued a number of remedies including requiring CAF to allow other broadcasters to screen the African Championship 2017 and to refrain from bundling the broadcasting rights in that manner.
After delivering its infringement decision, the ECA referred leading figures of CAF to the prosecutor's office and instituted criminal action against them.
Immediately after delivering its infringement decision, the ECA reported the infringement to COMESA Competition Commission (CCC), highlighted the main finding and shared information and evidence with the CCC. More recently, the CCC announced opening an investigation against the alleged abusive conduct of CAF in the COMESA Common Market.
This case is the first investigation by COMESA of anti-competitive practices. Previously, the CCC's efforts were limited to receiving and appraising mergers.
The case also highlights the effectiveness and cooperation between the ECA and the CCC. The ECA has not only reported the case but also provided evidence and material and guidance to the CCC.
The Executive Regulations of the Egyptian Competition Law (ECL) were amended.
The Executive Regulations have brought important amendments, including details and procedures of obtaining an exemption for non-hardcore horizontal restraints. In addition, it has expanded the concept of the Single Economic Unit, creating a rebuttable presumption that undertakings managed or owned by relatives up to the second degree (parents, grandparents, grandsons, siblings, partners) would be deemed as a single economic unit.
This development has raised a lot of doubts and criticism from international commentators but the ECA holds the position that given the special sociocultural bonds and ties in the Egyptian society, this kind of rebuttal presumption is necessary. Furthermore, it was argued that the number of anti-competitive conduct detected between close relatives generally has globally been quite limited and therefore, this amendment does not adversely affect effective competition enforcement.
Imports Regulations were changed introducing a new sanction for engaging in anticompetitive conduct.
The law regulating the registration of importers in Egypt has been amended and the amendment was issued on 7 March 2017. It is clearly stated that the imports license would be cancelled if the director/manager of the company has been convicted in an anticompetitive conduct which is prohibited by the ECL.
This development reflects a more competition focused legislative policy by introducing more effective sanctions that would add to the deterrence of competition enforcement. The risk of losing the imports license may be more valuable than paying a criminal fine.
Companies are more likely to start taking ECL enforcement more seriously in order not to risk the disruption of its imports business.
Dawn Raids Conducted by the ECA
Recently, the ECA has started relying more frequently on dawn raids as an inspective tool. In previous years, dawn raids were quite limited but are now being used more effectively.
The ECA announced that it had raided several companies at the same time and was able to detect direct evidence on cartels. This has been reported recently in the heart valves cartel (below) and in the Pharmaceuticals distribution cartel.
The ECA does not normally announce dawn raids until the investigation is finished. In addition, almost in all dawn raids the ECA teams are accompanied by Police forces. This gives effective support to the ECA efforts and ensures that the process goes smoothly.
Heart valves cartel
On 7 March 2017, the ECA board issued its infringement decision revealing a bid rigging cartel between seven of the biggest companies active in the market of medical equipment supplies related to heart valves and antioxidants related to heart and chest surgeries and referred them to the Prosecutor’s Office for rigging governmental bids.
According to the ECA, it was able, during its one year investigation, to prove that these companies had colluded to submit identical commercial offers in order to force hospitals to divide the bid among those companies and enabled them to control supplies to those hospitals and increase their supply prices. It was noted that the investigation covered the period from 2013 until 2015
The ECA added that, this cartel has caused a material damage to governmental and university hospitals as the cartel led to a price increase that affected the purchasing power of those entities and their ability to buy sufficient medical supplies, which directly affected patients.
This is the first competition bid rigging case in Egypt.
It is another success that can be added to the enforcement record of the ECA. With very limited resources, the ECA is proving that it is capable of bringing big cases and effectively using its powers.
Egypt is currently facing economic challenges. This bid rigging case directly contributed to this challenge as the companies rigged the bids supplying governmental and university hospitals that are wholly funded by the government. Recently, the ECA has been focusing on more strategic cases and cases where infringements are affecting a wider range of consumers, which is a welcomed approach given the scarcity of resources.
Competition Law developments in Sub-Saharan Africa
In early March 2016, the Botswana Competition Authority (BCA) published a practitioners notice listing additional information that should be included in a merger submission to the BCA. The additional information required by the BCA is mainly focused on public interest issues, rather than pure competition concerns, and this is in line with current trends in merger control in Africa where there is an increasing focus on how a proposed merger transaction will, not only impact on competition in a market, but will impact on various public interest considerations such as employment, safeguarding supply by or two local companies and the development of the local economy.
The Kenya Competition Authority (CAK) concluded a MOU with the CCC on 14 June 2016. The MOU is aimed at facilitating and promoting cooperation and coordination between the CCC and the CAK. Notably, the CAK has disputed any exclusivity of jurisdiction for the CCC and has, accordingly, insisted that transactions that have a regional dimension (and hence require notification to the CCC) must also be notified to the CAK. The MOU does not clarify this aspect and multi-jurisdictional transactions that require notification to the CCC and involves Kenya, must also be notified to the CAK.
The Competition (Amendment) Bill, 2016 was passed by Kenyan National Assembly on 1 December 2016 and assented to by the President of Kenya on 23 December 2016. Regarding mergers, the Bill
- clarifies that a change of control can occur through the acquisition of an asset;
- introduces penalties for merging parties who submit incorrect information to the CAK as part of a merger filing;
- provides for a regime to revoke a merger approval or conditional merger approval if the decision was based on materially incorrect or false information; and
- introduces criminal liability for merging parties who implement a merger despite the CAK revoking a merger approval (where the decision was based on false or misleading information or where the merging parties fail to comply with any conditions imposed by the CAK).
Early in 2017, the merger filing fees payable to the Namibian Competition Commission were amended. The basis for calculation of merger filing fees remains substantially unchanged and a minor amendment was made to reflect the method of calculation of merger filing fees applied in practice - in particular, the "combined figure" is calculated by combining any combination of the turnover in, into and from Namibia or the assets (whichever is the higher) held in Namibia of the acquirer and target firm.
The amendments to merger filing fees result in an overall increase in the merger filing fees payable for merger notifications in Namibia.
The fee for filing a merger in Namibia is now as follows:
- NAD10,000, if the combined figure is valued below NAD50 million;
- NAD25,000, if the combined figure is valued at or above NAD50 million, but less than NAD65 million; or
- NAD50,000, if the combined figure is valued at or above NAD65 million, but less than NAD75 million; or
- NAD75,000, if the combined figure is valued at or above NAD75 million, but less than NAD100 million;
- NAD125,000, if the combined figure is valued at or above NAD100 million, but less than NAD1 billion;
- NAD250,000 if the combined figure is valued at or above NAD1 billion, but less than NAD3,5 billion; or
- NAD500 000, if the combined figure is valued at or above N$3,5 billion.