COMESA: STRENGTHENING COOPERATION BETWEEN THE COMESA COMPETITION COMMISSION AND COMPETITION REGULATORS IN MEMBER STATES
The COMESA Competition Commission (Commission) is one of the most notable competition regulators in Africa, having jurisdiction over 21 Member States. Since becoming operational in 2013, the Commission has embarked on several initiatives to enhance cooperation and coordination with, and among, competition regulators in Member States1.
The Commission’s most recent initiatives include engaging in talks with the Malawi Competition and Fair Trading Commission (Malawi Commission), rendering training initiatives to the Rwanda Inspectorate, Competition and Consumer Protection Authority (RICA), and concluding a Memorandum of Understanding (MoU) with the Competition Commission of the Democratic Republic of Congo (DRC Commission).
The COMESA Competition Regulations, 2004, envisage the Commission, inter alia:
- monitoring and investigating anti-competitive practices in the Common Market and mediating disputes among Member States concerning anti-competitive conduct;
- initiating cooperation with Members States’ national competition authorities;
- assisting Member States in promoting national competition laws and implementing their decisions;
- supporting Member States in promoting and protecting consumer welfare; and
- facilitating the exchange of procedural and substantive information on competition matters.
The Regulations contemplate the harmonization of national competition laws with the Regulations and the uniform interpretation and application of competition law and policy within the Common Market.
In accordance with this mandate, the Commission recently met with delegates from the DRC Commission and a MoU was signed on 19 April 2021, in terms of which the Commission and the DRC Commission committed to inter alia:
- notification: notifying the other whenever individual enforcement activities may affect the other and sharing information pertaining to anti-competitive practices and mergers which may be relevant to the other;
- coordination: coordinating in relation to enforcement activities, including by way of assisting the other to locate and secure evidence relevant for an investigation and keeping one another apprised of developments and eventual outcomes;
- comity: avoiding conflicts in enforcement activities, and consulting with one another on topics of mutual interest, such as current enforcement efforts and priority areas, as well as exchanging views on economic sectors and policies;
- technical assistance and capacity building: cooperating in advancing technical assistance and capacity building programmes in order to strengthen enforcement; and
- confidential treatment of information: whilst the MoU provides the Commission and DRC Commission with an enhanced platform to address procedural and substantive challenges likely to arise in cross-border competition and consumer protection investigations, neither regulator is required to share information belonging to a third party with the other, without the third party’s consent.
The DRC Commission also visited the Malawi Commission to discuss competition and consumer protection enforcement in Malawi.
Although the Malawi Commission is already party to a MoU with the Commission (accessible here), recent talks between the two regulators were aimed at sharing experiences under the MoU and enhancing coordination.
Malawi is also in the process of strengthening its national competition law, with the support from a Delegation from the European Union to Malawi – see our earlier newsflash here, and we expect to see further discussions on cooperation and coordination between the two regulators in the future.
In relation to Rwanda, while no MoU is yet in place between RICA and the Commission, delegates from RICA recently concluded a training programme hosted by the Commission. The expectation is that the training will assist RICA in addressing gaps in its competition and consumer protection regime. RICA representatives have also indicated their willingness and commitment to collaborate with the Commission in the future.
The Commission has now concluded 11 MoUs with Member States and continues to engage with others. Firms doing business in Eastern and Southern Africa should expect an increase in cooperation among competition enforcers, and take the implications of these cooperation initiatives into account when preparing compliance programmes, dawn raid manuals, merger notifications, possible merger remedies, as well as leniency and settlement discussions.
1The COMESA Member States are Burundi, Comoros, Democratic Republic of Congo, Djibouti, Egypt, Eritrea, eSwatini, Ethiopia, Kenya, Libya, Madagascar, Malawi, Mauritius, Rwanda, Seychelles, Somalia, Sudan, Tunisia, Uganda, Zambia and Zimbabwe.