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Published online by Cambridge University Press: 12 May 2022
Public interest issues have the potential to play a significant role in the evaluation of mergers and acquisitions in Africa's regional competition laws. A case in point is the Common Market for Eastern and Southern Africa (COMESA): its regional competition authorities have jurisdiction to evaluate transactions within the Common Market. To that end, COMESA's regional competition law enumerates specific public interest factors regarding mergers and acquisitions. Further, COMESA's regional competition law permits the consideration of additional factors under the rubric of public interest, without specifying what these factors are. On this basis, COMESA's regional competition authorities have gradually created precedents on incorporating public interest considerations. This illustrates the point that purist positions towards competition law do not serve Africa's socio-economic development goals. Therefore, the challenge facing COMESA's regional competition authorities is the application of the public interest in a manner that remains faithful to the economic doctrine that underpins competition law.
LLD (Competition Law) (University of the Western Cape); LLM (International Trade & Investment Law in Africa) (University of the Western Cape); LLB Honours (University of Fort Hare). Senior lecturer, Mercantile & Labour Law Department, Faculty of Law, University of the Western Cape.
1 E ElHauge and D Geradin Global Competition Law and Economics (2nd ed, 2011, Hart Publishing) at 801. Art 1 of the COMESA Competition Regulations of 2014 defines the term “undertaking” to include “any person, public or private, involved in the production of, or the trade in, goods, or the provision of services”. In this article, “transaction” shall be used as a collective term to refer to both mergers and acquisitions.
2 ElHauge and Geradin, Global Competition Law, above at note 1 at 805.
3 D Reader “Accommodating public interest considerations in domestic merger control: Empirical insights” (Centre for Competition Policy working paper, 18 February 2016) at 21.
4 Id at 1–2.
5 Id at 8–9.
6 Fox, EM “Equality, discrimination, and competition law: Lessons from and for South Africa and Indonesia” (2000) 41 Harvard International Law Journal 579Google Scholar at 593.
7 A Smith An Inquiry into the Nature and Causes of the Wealth of Nations (1/1, 1776, Strahan Publishers), chap 2, para 26; E Butler The Condensed Wealth of Nations and the Incredibly Condensed Theory of Moral Sentiments (2011, Adam Smith Research Trust) at 4.
8 Smith An Inquiry, above at note 7, chap 2, para 28.
9 Sherman Act of 1890 15 USC.
10 P Sutherland and K Kemp Competition Law of South Africa (2019, LexisNexis), para 2(4), citing 21 Congressional Record 2457 (1890). In his minority judgment in United States v Trans-Missouri Freight Association [1897] 166 US 290 at 355–56, J White confirmed that “[t]he remedy intended to be accomplished by the act of congress was to shield against the danger of contract of combination by a few against the interest of the many and to the detriment of freedom”.
11 OECD “The objectives of competition law and the optimal design of a competition agency” (2003) 5/1 Organisation for Economic Co-operation and Development Journal of Competition Law and Policy 1 at 2–4. The OECD also recognizes a third class of objectives, namely the so-called “grey-zone” objectives, such as curbing the concentration of market power.
12 RH Bork The Antitrust Paradox: A Policy at War with Itself (1993, The Free Press) at 427.
13 C Kaysen and DT Turner Antitrust Policy: An Economic and Legal Analysis (1959, Harvard University Press) at 14–16.
14 See J Schumpeter Capitalism, Socialism and Democracy (3rd ed, 1942, Harper & Brothers) at 83–84, where Schumpeter (an Austrian economist) describes innovation (dynamic competition) as “the perennial gale of creative destruction” which “incessantly revolutionises the economic structures from within, incessantly destroying the old one, and incessantly creating a new one”. According to Schumpeter, competition is concerned with “the new commodity, the new technology, the new source of supply, the new type of organisation … competition which commands a decisive costs or quality advantage and which strikes not at the margins of the profits and the outputs of the existing firms but at their foundations and their very lives”.
15 Bork The Antitrust Paradox, above at note 12 at 93, 427; UNCTAD “The benefit of competition policy for consumers” United Nations Conference on Trade and Development (2014) 1; Hovenkamp, H “Implementing antitrust welfare goals” (2013) 81/5 Fordham Law Review 2471Google Scholar; Stucke, ME “Should competition policy promote happiness?” (2013) 81/5 Fordham Law Review 2579Google Scholar; Lande, RH “A traditional and textualist analysis of the goals of antitrust: Efficiency, preventing theft from consumers and consumer choice” (2013) 81/5 Fordham Law Review 2349Google Scholar; D Zimmer “Consumer welfare, economic freedom and the moral quality of competition law” in J Drexl, W Kerber and R Podszun (eds) Competition Policy and the Economic Approach: Foundations and Limitations (2011, Edward Edgar Publishing) 50 at 72; N Motta Competition Policy: Theory and Practice (2004, Cambridge University Press) at 18.
16 OECD “Report on convergence of competition policies” (1994) 18/1 Organisation for Economic Co-operation and Development Journal of Competition Law and Policy 167Google Scholar at 173.
17 Ibid; W Adams and JW Brock “Antitrust and efficiency: A comment” (1987) 62/5 New York University Law Review 116.
18 OECD “The objectives of competition law”, above at note 11 at 2–4; T Kaira “The role of SMMEs in the formal and informal economy in Zambia: The challenges involved in promoting them and including them in competition regulation” in D Lewis (ed) Building New Competition Regimes (2013, Edward Elgar Publishing) 139 at 142–43; T Hartzenburg “Competition policy and enterprise development: The role of public interest objectives in South Africa's competition policy” in L Cook, R Fabella and C Lee (eds) Competitive Advantage and Competition Policy in Developing Countries (2007, Edward Elgar Publishing) 10 at 14; D Audretsch “Small firms, innovation and competition” in M Neumann and J Weigand (eds) The International Handbook of Competition (2004, Edward Elgar Publishing) 79 at 88; Kaysen and Turner Antitrust Policy, above at note 13 at 7; B Orbach and G Campbell-Rebling “The antitrust curse of bigness” (2012) 85 Southern California Law Review 605.
19 Parret, L “Shouldn't we know what we are promoting? Yes, we should! A plea for solid and comprehensive debate about the objectives of EU competition law and policy” (2010) 6/2 European Competition Journal 339CrossRefGoogle Scholar at 341.
20 BA Barner Black's Law Dictionary (10th edition, 2014, Thomson Reuters), ‘public interest’.
21 Reader “Accommodating public interest considerations”, above at note 3 at 6.
22 Id at 28.
23 In its Preamble, the South African Competition Act 89 of 1998 (as amended) speaks of the racial discrimination which led to the exclusion of the majority black citizens from participation in the economy by all South Africans. In sec 2, the Act enumerates its objectives, which include the promotion of employment and the advancement of the social and economic welfare of all South Africans, and increasing the ownership stakes in the economy by historically disadvantaged individuals.
24 In sec 16 of the Competition Act, the competition authorities must consider the effect of a transaction on a specific industry, on employment, on the competitiveness of small business enterprises owned or controlled by historically disadvantaged persons, and the ability of domestic industries to compete internationally. In Nasionale Pers Ltd & Education Investment Corporation Ltd [1999–2000] CPLR 89 (CT) the competition authorities considered the fact that education was important in addressing the legacy of apartheid and approved the merger subject to conditions directed at building capacity in public education; in Unilever plc & Others v Competition Commission & Others 55/LM/Sep01 the competition authorities were concerned with the job losses that would result from the merger; in South African Breweries (Pty) Ltd & Diageo South Africa (Pty) Ltd LM/187/Oct18 the competition authorities considered the impact the merger would have on job creation in the future; in Simba (Pty) Ltd & Pioneer Food Group Ltd LM108/Sept19 the competition authorities imposed conditions providing for employee share ownership; in Tiger Brands Ltd & Others / Lamgeberg [2006] 1 CPLR 370 (CT) the competition authorities imposed conditions pertaining to the re-skilling of employees and the establishment of a training fund for the benefit of persons affected by the merger.
25 Section 10 of the South African Competition Act envisages the granting of exemptions with regard to anti-competitive practices where such practice contributes to improving exports, advancing the competitiveness of small to medium enterprises or those owned (or controlled) by historically excluded individuals, and preventing the deterioration of an industry or ensuring economic stability.
26 Fox “Equality, discrimination, and competition law”, above at note 6 at 593; Chua, AL “Markets, democracy and ethnicity: Toward a new paradigm for law and development” (1998) 108 Yale Law Journal 1Google Scholar at 69, 105–07; Chua, AL “The paradox of free market democracy: Rethinking development policy” (2000) 41/2 Harvard International Law Journal 289Google Scholar; Fox, EM “Economic concentration, efficiencies and competition: Social goals and political choices” 1977 (47) Antitrust Law Journal 798Google Scholar at 885; EM Fox “The kaleidoscope of antitrust and its significance in the world economy: Respecting the differences” in BE Hawk (ed) International Antitrust Law and Policy: Fordham Corporate Law 2001 (2001, Juris Publishing) 597 at 599; Schwartz, LB “‘Justice’ and other non-economic goals of antitrust” (1979) 127 University of Pennsylvania Law Review 1076Google Scholar at 1078; Fox, EM “The modernization of antitrust: A new equilibrium” (1981) 66/6 Cornell Law Review 1140Google Scholar at 1142; Hovenkamp, H “Distributive justice and the antitrust goals” (1982) 52 George Washington Law Review 1Google Scholar at 21.
27 For example, Shell South Africa (Pty) Ltd / Tepco Petroleum (Pty) Ltd 66/LM/Oct01; Telkom SA Ltd & Business Connexion Group Ltd 51/LM/Jun06, para 297.
28 See Wal-Mart Inc & Massmart Holdings Ltd [2011] 1CPLR 145 (CT).
29 For example, Anglo American Holdings Ltd and Kumba Resources Ltd / Industrial Development Corporation (intervening) [2003] 46/LM/Jun02 ZACT 45, para 156.
30 For example, National Society of Professional Engineers v United States [1978] 435 US 679, 692.
31 See Bork The Antitrust Paradox, above at note 12 at 91, where Bork also argues that “antitrust … has nothing to say about the ways prosperity is distributed”.
32 Hovenkamp, H “Post-Chicago antitrust: A review and critique” (2001) Columbia Business Law Review 257Google Scholar at 269; WD Reekie “The Competition Act, 1998: An economic perspective” (1999) 67/2 South African Journal of Economics 258 at 259, 286.
33 Id at 259; Competition & Markets Authority “Public interest regimes in the European Union: Differences and similarities in approach” (Final Report of the EU Merger Working Group, 10 March 2016) at 5.
34 Reader “Accommodating public interest considerations”, above at note 3 at 28.
35 OECD “Competition law and responsible business conduct” (paper presented at the Global Forum on Responsible Business Conduct, 18 June 2015) at 19.
36 Davies, J and Thiemann, A “Competition law and policy: Drivers of economic growth and development” (2015) 4 Organisation for Economic Co-operation and Development Journal of Competition Law and Policy 1Google Scholar at 9.
37 Ibid.
38 COMESA is one of Africa's regional trade blocs. It is also one of the building blocks of the African Continental Free Trade Area (AfCFTA), established by the Agreement Establishing the African Continental Free Trade Area of 2018, which came into force on 1 January 2021. In the Treaty Establishing the Common Market for Eastern and Southern Africa (the COMESA Treaty), signed on 5 November 1993 and which came into force on 8 December 1994, art 55 affirms the importance of competition policy and law and makes provision for the enactment of regional competition laws. Pursuant to art 55, specific regional legal instruments pertaining to competition law have been adopted, namely: the COMESA Competition Regulations of 2004, the principal competition law instrument in COMESA; the COMESA Competition Rules of 2004, which provide for the procedural aspects of COMESA's competition law; the Rules on COMESA Revenue Sharing of Merger Filing Fees of 2012, the objective of which is to devise an equitable method of sharing revenue generated by merger and acquisitions filings with a COMESA dimension; the COMESA Rules on the Determination of Merger Notification Thresholds and Method of Calculation of 2012, which prescribe the threshold and method of the calculation of the turnover or the value of the assets of parties to mergers and acquisitions; the COMESA Merger Assessment Guidelines of 2014, which embody the Common Market's merger control regime; the COMESA Competition Commission (Appeals Board Procedure) Rules of 2017; the COMESA Guidelines on Market Definition of 2019, which establish a framework within which the Competition Regulations are applied by the COMESA Competition Commission and provide guidelines for a systematic tool in identifying the competitive constraints that undertakings in the region face; the COMESA Guidelines on Restrictive Business Practices of 2019, which aim to provide general guidance on the implementation of the COMESA Competition Regulations’ provisions on restrictive business practices; and the COMESA Guidelines on Abuse of Dominance of 2019, which aim to provide general guidance on the abuse of dominance provisions in the COMESA Competition Regulations.
39 Competition Regulations, arts 16–22.
40 Id, arts 23–26.
41 Id, arts 27–39.
42 Id, arts 6–11.
43 Id, arts 12–15.
44 Id, art 13(4).
45 Id, art 3(1). However, arts 4(1)–4(2) enumerate specific exclusions to which the Competition Regulations do not apply, namely labour-law collective bargaining arrangements, the activities of trade unions, and the activities of professional associations. Further, although the Competition Regulations do not derogate from the protection and enjoyment of intellectual property rights such as patents, industrial designs, trademarks and copyrights, the Regulations prohibit the use of intellectual property rights in a manner that has anti-competitive effects.
46 Id, art 3(1). Also relevant are the COMESA Competition Rules of 2004 (as amended), which deal with the procedural aspects of the work of the COMESA competition authorities, such as the initiation of complaints and the procedure and paperwork that must be filed before the competition authorities, inter alia.
47 See “Mergers Handled by the COMESA Competition Commission, 2013 – March 2021”, available at: <https://www.comesacompetition.org/?cat=56> (last accessed 12 March 2021).
48 Ibid.
49 See “Merger Transactions by Member State, 2013 – June 2016”, available at: <http://www.comesacompetition.org/wp-content/uploads/2016/06/Merger-transactions-by-member-state.pdf> (last accessed 10 December 2020).
50 Merger Assessment Guidelines, sec 3(9).
51 Competition Regulations, arts 23–26.
52 Id, art 23(1); Merger Assessment Guidelines, sec 2.
53 Competition Regulations, arts 23(1)(a)–(c).
54 Id, art 23(2)(a).
55 Id, art 23(2)(b).
56 Id, art 23 stipulates that that a merger is “the direct or indirect acquisition or establishment of a controlling interest by one or more persons in the whole or part of the business of a competitor, supplier, customer, or other person”. I submit that the term “competitor” denotes the existence of a horizontal relationship between the parties to the merger or acquisition, while the terms “supplier” and “customer” denote a vertical relationship between the parties, and “other person” may be taken to denote a conglomerate relationship. The term “person” is defined by id, art 1 to mean either a natural person or a juristic person. The Merger Assessment Guidelines, secs 8(11)–8(90), refer to the terms horizontal, vertical and conglomerate mergers.
57 Ibid.
58 Ibid.
59 Ibid.
60 Ibid; PN Ndlovu Competition Law in South Africa (2018, Wolters Kluwer) at 255–56. Horizontal mergers raise so-called “coordinated effects”, namely that the remaining undertakings in the market in which the merged entity operates can carry out anti-competitive practices by coordinating their behaviour. A merged undertaking may also enhance unilateral market power, the so-called “unilateral effects”, whereby the merged entity can unilaterally carry out anti-competitive conduct independent of any collusion with its competitors. The unilateral effects occur because of the enhanced or even created market power of the merged entity. Therefore, these effects can either be in the form of increased market share for the merged entity (and the consequential absence of constraints from the merged entity's competitors) or in the form of acquisition of market power in an oligopolistic market, even though the merged entity does not acquire a dominant position.
61 Merger Assessment Guidelines, secs 8(11)–8(90); PN Ndlovu Competition Law, above at note 60 at 251–54.
62 ElHauge and Geradin Global Competition Law above at note 1 at 802. For instance, the result of the merger may be that one of the undertakings enters into the market of another, which may eliminate potential competition. Alternatively, the merged entity may engage in vertical anti-competitive behaviour.
63 Merger Assessment Guidelines, sec 7(2).
64 Id, sec 7(3).
65 See Eurasian Natural Resources Corporation / Eurasian Resource Group BV CC/MER/9014/2013, para 3; ImproChem Proprietary Limited / Clariant Southern Africa's Water Treatment Business CCC/MER/9/32/2014, para 2; Khumo Bathong Strategic Investments Proprietary Limited & Star Focus Proprietary Limited / Chlor-Alkali Holdings Proprietary Limited CCC/MER/6/20/2014, para 2; Kenya Towers Limited, Malawi Towers Limited and Uganda Towers Limited / Eaton Towers Limited CCC/MER/03/04/2015, para 2; Holtzbrink Publishing Group / Springer Science / Business Media GP Acquisition SCA CCC/MER03/05/2015, para 2; Steinhoff International Holdings Limited / Pepkor Holdings Proprietary Limited CCC/MER03/02/2015, para 2; Ethos Private Equity Fund IV / Nampak Corrugated & Nampak Tissue Products Limited CCC/MER/03/01/2015, para 2; Traxys Africa Proprietary Limited / Metmar Limited CCC/MER/06/08/2015, para 2; Exor SPA / PartnerRe Ltd 2016/03/07/02, para 2; Yara Nederlands BV / Greenbelt Fertiliser Limited Zambia and Greenbelt Fertiliser Malawi 2016/03/07/03JB, para 2.
66 For example, Eurasian Natural Resources Corporation, above at note 65, paras 10–11; Old Mutual Alternatives Investments Holdings Proprietary Limited / African Fund Managers (Mauritius) / African Infrastructure Investment Fund 2 General Partner Proprietary Limited CCC/MER/07/11/2015, paras 2, 9.
67 Merger Assessment Guidelines, sec 7(4). Examples of conditional approvals include: Banque Populaire du Rwanda / Atlas Mara 2016/06/JB/01, para 12; Metal Fabricators of Zambia plc / Reunert Limited 2016/11/LV/01, paras 8–14; Blue Nile Cigarette Company / British American Tobacco Middle East DMCC 2016/09/JB/05, paras 11–14; Rosewild Trade and Invest Proprietary Limited / Chlor-Alkali Holding Proprietary Limited 2016/09/JB/03, paras 11–12; Greenfield Joint Venture Between Orange SA / MTN Group Limited CC/MER/09/33/2018, paras 12–17; Augusta Acquisition BV / Careem Inc CCC/MER/6/22/2019, paras 10–11.
68 Competition Regulations arts 23–26 are devoted to mergers and acquisitions. In turn, the Merger Assessment Guidelines are wholly dedicated to the evaluation of mergers and acquisitions.
69 Competition Regulations, art 24(2); notification must be made within 30 days after the merging parties’ decision to merge. The Merger Assessment Guidelines sec 4(1) makes provision for pre-merger notification consultation with the Competition Commission to establish whether the transaction in question is indeed a merger, whether it must be notified and the calculation of annual turnover, value of assets, market shares and other matters. In id, secs 4(2)–4(9), the guidelines permit merging parties to request “comfort letters” from the Commission stating that the transaction in question is not a notifiable merger because it would not have an appreciable effect on trade between member states or restrict competition in the Common Market. Such requests must be supported by information and documents to enable the Commission to evaluate the request.
70 Competition Regulations, arts 24(4)–24(6). Such a penalty may not exceed 10% of either or both merging parties’ annual turnover in the Common Market for the preceding financial year.
71 Merger Assessment Guidelines, secs 5(31)–5(33).
72 Ibid; Dairy Distributors SAE / Greenland Group for Food Industries SAE CCC/MER/5/19/2019, paras 9–11; Competition Regulations, art 23(6).
73 Competition Regulations, art 23(1); Merger Assessment Guidelines, sec 2.
74 Competition Regulations, art 23(1)(a)–(c).
75 Merger Assessment Guidelines, secs 2(4)–2(10).
76 Competition Regulations, art 23(3)(a); Merger Assessment Guidelines, secs 3(1)–3(13). For example, in ImproChem Proprietary Limited, above at note 65, para 3, the parties to the transactions operated in 12 member states; in Telkom SA SOC Limited / Business Connexion Group Limited CCC/MER/9/25/2014, para 3, the parties to the transaction operated in 11 member states; in Platform Specialty Products Corp / Arysta LifeScience Limited CCC/MER/11/41/2015, para 3, the parties to the transaction operated in nine member states; in Coca-Cola Beverages Africa Limited / Coca-Cola Sabco Proprietary Limited CCC/MER/03/03/2015, para 3, the parties to the transaction operated in seven member states; in Finance Bank Zambia plc / Atlas Mara Limited 2016/03/24/02/BR, para 3, the parties to the transaction operated in four member states; in Sadolin Group of Companies / Kansai Plascon East Africa Proprietary Limited 2017/09/13/03/RR, para 4, the parties to the transaction operated in ten member states; in Fairfax Africa Holdings Corporation / Consolidated Infrastructure Group Limited CCC/MER/07/25/2018, para 7, the parties to the transaction operated in nine member states; in Outotec Oyj / The Minerals Business of Mesto Oyj CCC/MER/09/37/2019, para 5, the parties to the transaction operated in 12 member states; in Kantar Group / Bain Capital Investors LLC CCC/MER/3/6/2020, para 4, the parties to the transaction operated in nine member states.
77 Merger Assessment Guidelines, secs 2(4)–2(10).
78 Ibid.
79 Id, secs 3(9)–3(10); for example Lake Oil Group Limited / Petronas Sudan Limited 2016/03/08/06/JB, paras 4–7; DSV A/S / Uti Worldwide Inc 2016/03/07/07/01/JB, paras 3–6.
80 Merger Assessment Guidelines, sec 3(10).
81 See Exor SPA, above at note 65, paras 3–4, 6.
82 Merger Assessment Guidelines, sec 3(9); Oasis SA and Mobile Cash RDC / Orange Middle East and Africa 2016/06/JB/02, paras 3–4.
83 For example, Lusaka Cosmopolitan Investments Limited / Delta International Mauritius Limited 2016/11/LV/08, para 8.
84 Merger Assessment Guidelines, sec 5(27)(a); in Gulf Africa Petroleum Corporation / Total Outre Mer SA MER/07/17/2016, paras 7–11, the transaction, which raised competition issues in Kenya, was approved subject to conditions to be implemented in the Kenyan market regarding third parties.
85 Competition Regulations, art 23(4); Merger Assessment Guidelines, secs 3(14)–3(26). Rule 4 of the COMESA Rules on the Determination of Merger Notification Thresholds stipulates that for a merger to be notifiable, the combined annual turnover or combined assets, whichever is higher, in the Common Market for all parties to a merger must equal or exceed COM$ 50 million; and the annual turnover or value of assets, whichever is higher, in the Common Market of at least two of the parties to the merger must equal or exceed COM$ 10 million, unless each of the parties to the merger achieves at least two thirds of its aggregate turnover or assets in the Common Market within a single member state. COM$ is the COMESA currency used by the COMESA Competition Commission regarding the thresholds for mergers and acquisitions notified to the Commission; in terms of Rule 4, COM$ 1 is equivalent to USD 1.
86 Merger Assessment Guidelines, sec 3(11).
87 Competition Regulations, art 23(5)(a); Exor SPA, above at note 65, paras 3–7.
88 Competition Regulations, art 20. In domestic jurisdictions, such as South Africa, authorizations are referred to exemptions which under the Competition Act 89, sec 10(3), are granted for a specified period and under specific terms if such exemptions are directed at achieving particular objectives, including those contributing towards the competitiveness and efficiency gains that promote employment of industrial expansion, and the participation or entry into a market by small and medium enterprises or firms controlled or owned by historically disadvantaged persons.
89 Competition Regulations, art 20(1).
90 Id, art 20(1)(a).
91 Id, art 4(c).
92 Id, art 26(1)(b).
93 Id, arts 26(3)–26(4).
94 Id, art 26(1)(b).
95 Id, art 26(7).
96 Id, art 23(6).
97 Id, art 23(5)(a).
98 Id, art 26(1)(b).
99 See Total Outre Mer SA / Shell Marketing Egypt and Shell Compressed Natural Gas Egypt Company CCC/MER/7009/2013, paras 3(1)–4(1).
100 Competition Regulations, art 26(1); Merger Assessment Guidelines, sec 6(1).
101 Id, secs 8(3)–8(10). For example, Total Egypt LLC / Chevron Egypt SAE CCC/MER/1012/2013, para 8; Old Mutual (Africa) Holdings Proprietary Limited / Oceanic Company Limited CCC/MER/007/2013, para 8; Cannon Assurance Limited / Metropolitan International Holdings Proprietary Limited CCC/MER/9/30/2014, para 7; Torre Industrial Holdings Limited / Control Instruments Group Limited CCC/MER/5/15/2014, para 9; International Lease Finance Corporation / AerCap Ireland Limited CCC/MER/101/2014, para 2; Telkom SA SOC Limited, above at note 76, para 7; Coca-Cola Beverages Africa Limited above at note 76, para 8; Traxys Africa Proprietary Limited, above at note 65, para 7; Yara Nederlands BV, above at note 65, para 7; Tsebo Holdings Proprietary Limited / Wendel SE 2017/03/JB/06, para 7.
102 Competition Regulations, arts 26(2)(a)–(h).
103 Id, art 26(5).
104 Merger Assessment Guidelines, secs 7(6)–7(8).
105 Id, sec 7(9).
106 Id, sec 8(1). This process involves examining the impact of the merger on entry and expansion, the assessment of efficiencies, countervailing buyer power and the removal of a “maverick undertaking”, inter alia.
107 For example, Old Mutual (Africa) Holdings Proprietary Limited / Oceanic Company Limited, above at note 101, paras 7–9.
108 CFR Inversiones SPA / Adcock Ingram Holdings Limited CCC/MER/1223/2013, paras 7–8.
109 For example, Sanlam Emerging Markets Proprietary Limited / Masawara Investments Mauritius Limited CCC/MER/07/09/2015, para 7; Old Mutual Alternatives Investments Holdings Proprietary Limited / African Fund Managers (Mauritius), above at note 66, paras 7–8; DSV A/S, above at note 79, paras 10–11; China National Tire & Rubber Co. Ltd / Pirelli & CSpA 2016/03/07/04/JB, para 11; Oasis SA, above at note 82, paras 10–12; Maersk Olie og Gas A/S / Total SA 2018/01/JB/01, paras 9–10; Banque Malgache de l'Ocean Indien / Banque Centrale Populaire CCC/MER/1/1/2019, paras 7–9.
110 See Total Outre Mer SA, above at note 99, para 4(1); Sadolin Group of Companies, above at note 76, paras 10–11; PPC International Holdings Proprietary Limited / CIMERWA Limited CCC/MER/8002/2013, paras 4(1)–4(2).
111 For example, FedEX Corporation / Supaswift (Swaziland) (Proprietary) Limited, Supaswift Zambia Limited and Supaswift Limited (Malawi) CCC/MER/1121/2013, para 7; Coca-Cola Beverages Africa Limited above at note 76, para 9; Holtzbrink Publishing Group, above at note 65, para 7; Steinhoff International Holdings Limited, above at note 65, para 8; Ethos Private Equity Fund IV, above at note 65, para 7; Yara Nederlands BV, above at note 65, para 9; MyBucks SA / Opportunity International Group 2016/06/JB/03, para 10; Copperbelt Energy Corporation plc / Zambian Transmission LLP 2018/03/JB/07, para 9.
112 Competition Regulations, art 26(1)(a).
113 Ibid.
114 Id, art 26(1)(b).
115 Id, art 26(3)(a). The CID regularly approves mergers on the basis that they are “not likely to substantially prevent or lessen competition and will not be contrary to the public interest”. For example, Eurasian Natural Resources Corporation, above at note 65, para 8, a mining and transportation merger; Total Egypt LLC, above at note 101, paras 7–9, a petroleum sector merger; Roots Group Arabia / Ideal Standard MENA CCC/MER/1017/2013, para 7, a construction sector merger; Old Mutual (Africa) Holdings Proprietary Limited / Provident Life Assurance Company Limited CCC/MER/9015/2013, paras 7–8, an insurance sector merger.
116 Competition Regulations, arts 26(3)(a)–(b). China National Tire & Rubber Co. Ltd, above at note 109, paras 9–10, notes that a dominant position is not illegal, but the abuse thereof is. With this particular transaction, the Commission indicated it would result in a market share of 45% in Egypt and that if this dominant position were abused, Egypt's competition law would apply, and / or the Competition Regulations’ provisions if such abuse affected two or more COMESA member states. See also Traxys Africa Proprietary Limited, above at note 65, paras 8–9; Exor SPA, above at note 65, para 13; Finance Bank Zambia plc, above at note 76, paras 7–8.
117 See EQT Services (UK) Limited / Kuoni Travel Holding Limited 2016/06/JB/04, para 12; MyBucks SA, above at note 111, para 9; Total Outre Mer SA, above at note 99, para 4; Finance Bank Zambia plc, above at note 76, paras 7–8; PPC International Holdings Proprietary Limited, above at note 110, paras 4(1)–4(2).
118 For example, I & M Holdings / CDC Group plc 2016/06/JB/05, para 11; Dow Chemical Company / EI Pont de Nemours Company 2016/09/JB/01, paras 8–9; ARM Cement Limited / CDC Group plc 2016/09/JB/02, paras 7–8; Syngenta AG / China National Agrochemical Corporation 2016/09/JB/10, paras 7–9; Total SA / Liquefied Natural Gas Business of Engie SA 2018/03/JB/08, paras 8–10; Ontario Inc / AGT Food and Ingredients Inc CCC/MER/01/03/2019, paras 10–11; Finnish Fund for Industrial Cooperation Ltd / Green Resources AS CCC/MER/04/10/2019, paras 8–9; BC European Capital X and BC Partners Fund XI / Società Finanziaria Macchine Automatiche SpA CCC/MER/8/20/2020, paras 10–12.
119 Competition Regulations, art 26(4).
120 Id, art 26(4)(a).
121 Id, art 26(4)(b).
122 Id, art 26(4)(c).
123 See the section “The meaning of ‘public interest’ in competition law analyses” above.
124 Competition Regulations, art 2(4).
125 In the three cases DSV A/S, above at note 79, para 12, DFCU Limited & Zambia National Commercial Bank / Arise BV 2017/06/JB/05, para 10, and Delta Corporation Limited / Traditional Beer Businesses of Anheuser-Busch InBev SA/NV in Zambia CCC/MER/10/27/2017, paras 9–10, with consideration of Zambia's policy of industrialization and its job creation strategy to safeguard the public interest such as job losses in all mergers, the CID approved the transaction on condition that the parties entered with local contractors for a period of one year from the date of the approval of the transaction in order to maintain the existing legal obligations. Secondly, the parties to the transaction were to ensure that no existing jobs at the operational level were lost in Zambia because of the merger for a period of one year after the approval of the transaction, unless such job losses occurred in strict adherence to Zambia's labour laws. In BIH Brasseries Internationales Holdings Limited / Carlsberg Malawi Limited 2017/04/11/01/RR, paras 9–15, the CID imposed conditions on the merging parties that for a period of 24 months there would be no retrenchments owing to the merger, and that the merging parties would continue to build capacity of the current employees in key operations of the company. In Vivo Energy Holding BV / Engen International Holdings (Mauritius) Limited 2018/07/01, para 13, the CID was concerned with the non-compete clause with regard to employees. In Marinvest Srl, Ignazio Messina & CSpA / RORO Italia Srl CCC/MER/11/41/2019, para 11, the CID approved the transaction subject to the condition that the parties would not implement merger-specific retrenchments for a period of two years post-transaction.
126 See PPC International Holdings Proprietary Limited / CIMERWA CCC/MER/8002/2013, para 3(3).
127 For example, Akzo Nobel Coatings International BV / Mauvilac Industries Limited CCC/MER/43/12/2019, paras 12–15.
128 For example, Eurasian Natural Corporation, above at note 65, para 10; CFR Inversiones SPA, above at note 108, para 9; FedEX Corporation, above at note 111, para 8; CMC Holdings Limited / Al Futtaim Auto & Machinery Company LCC CCC/MER/204/2013, paras 6–8; Kone Kenya Limited / Marryat & Scott (Kenya) Ltd CCC/MER/103/2014, para 7; Africell Holding SAL / Orange Uganda Limited CCC/MER/6/19/2014, paras 9–10; Holcim Limited / Larfage SA CCC/MER/6/20/2014, paras 8–11; Cannon Assurance Limited, above at note 101, para 8; ImproChem Proprietary Limited, above at note 65, para 7; Platform Specialty Products Corp, above at note 76, para 8; Kenya Towers Limited, above at note 65, para 8; Holtzbrink Publishing Group, above at note 65, para 8; Steinhoff International Holdings Limited, above at note 65, para 9; Ethos Private Equity Fund IV, above at note 65, para 8; Finance Bank Zambia plc, above at note 76, paras 2 and 7; Barclays Bank Egypt SAE / Attijariwafa Bank SA 2017/09/LV/01, paras 9–10; Building Supply Group / Steinhoff Doors & Building Materials Limited 2018/01/JB/06, para 8; Total SA / Eren Renewable Energy SA 2018/01/JB/02, paras 9–10; Vivo Energy Investments BV / Kuku East Africa Holdings Limited CCC/MER/06/23/201907/27/2019, paras 9–10; Platin2025 GmbH / Robert Bosch Packaging Technology GmbH CCC/MER/08/30/2019, paras 9–10; Tana Protein Foods Ltd / African Protein Holdings Limited CCC/MER/11/26/2020, paras 10–11; Adwia Company SAE / Zanzibar Pharma Limited CCC/MER/08/18/2020, paras 10–12; International Lease Finance, above at note 101, para 7.
129 For example, Africell Holding SAL above at note 128, para 10; Robert Bosch GmbH / Hytec Holdings (Pty) Ltd CCC/MER/8/29/2014, para 10.
130 In BIH Brasseries Internationales Holding Limited, above at note 125, paras 9–15, in which beer products produced in Malawi were not exported to neighbouring member states and conversely beer products produced in neighbouring member states were not exported into Malawi. Thus, these products were not subject to free movement across borders in the Common Market. To address this, the CID took the view that the transaction could be authorized only if the parties undertook to allow free movement of their products across borders in the Common Market. In Eaton Towers Holdings Limited / ATC Heston BV CCC/MER/06/24/2019, paras 10–12, the CID concluded that the transaction was likely to have an SPLC effect in the relevant market in Uganda, that it would restrict trade between member states and would thus be incompatible with the COMESA Treaty objectives. Thus the CID imposed several conditions and a monitoring of compliance with them.
131 International Lease Finance / AerCap Limited CCC/MER/101/2014 para 7.
132 Competition Regulations, art 26(7)(a).
133 Id, art 26(7)(b).
134 Id, art 26(7)(c).
135 Id, art 26(7)(d).
136 Id, art 26(7)(e).
137 Id, art 23(5)(a).
138 Id, art 23(5)(b).
139 Id, art 23(6).
140 Id, arts 26(4)(a)–(c).