ESWATINI DOMINATES COMESA COMPCO ISSUES

MBABANE - Eswatini is one of countries that recorded most restrictive business practices cases with the COMESA Competition Commission (CCC).

Eswatini is a member of the Common Market for Eastern and Southern Africa (COMESA) alongside 20 African countries. In 2020, the CCC considered a total of eight restrictive business practice cases. The CCC also issued two advisory opinions to specific national competition authorities of the member States on the application of competition principles on competition concerns in those respective jurisdictions. According to the COMESA 2020 annual report, most of the cases handled by the CCC affected Kenya, Malawi, Uganda, Zambia, Zimbabwe, Mauritius, Eswatini and Comoros. At least three investigations affected each of the member States.

The restrictive business practices cases affected several economic sectors namely: sports marketing, alcoholic and non-alcoholic beverages, pharmaceuticals, freight forwarding, telecommunication, aviation, manufacturing, services, pay-tv and shipping. The CCC, on the other hand, experienced a decrease in the number of mergers reviewed in 2020 as compared to the two previous years. This may be attributed to the peculiar environment in 2020 for merger notification and  review due to the COVID-19 pandemic.

The decline in the number of merger transactions notified to the Commission was from an average of 45 mergers in 2018 and 2019 to 34 last year. Due to COVID-19 business disruptions, the CCC was conscious of expected delays in relation to timing for receiving merger notifications, timings for consultations with member States and the approval of mergers within the statutory period of 120 days. To provide clarity on anticipated changes in timelines, the CCC issued a Notice on interim measures in merger review due to COVID-19 pandemic.

The measures relaxed the procedures for parties to notify mergers within 30 days of making a decision to merge, relaxed the requirement for merging parties to submit hard copy merger files within seven days from date of submission of an electronic filing, suspended on-site investigations and face-to-face meetings and alerted stakeholders that the 120-day requirement for completing merger assessment may be extended due to delays in feedback from member States as a result of national lockdowns.

Meanwhile, CCC is mandated under the COMESA Competition Regulations to promote and encourage competition within the region by, inter alia, preventing restrictive business practices that deter the efficient operation of markets thereby, facilitating the regional integration agenda. Ultimately, the CCC’s goal is to enhance the welfare of consumers in the common market by protecting them against anti-competitive conduct by market actors. The CCC’s core focus areas under the regulations include investigation of anti-competitive business practices and conduct; investigation of mergers and acquisitions; and investigation of unfair, deceptive and fraudulent business practices towards consumers and other businesses.

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