african competition law developments...approval of several diplomas that led to the reform of the...

AFRICAN COMPETITION LAW

DEVELOPMENTS

SPEAKERS

> Pieter Steyn – Werksmans Attorneys – South Africa

> Neuza Dias – FBL Attorneys – Angola

> Celia Francisco – CGA – Mozambique

> Sydney Chisenga – Corpus Legal Practitioners – Zambia

> Peter Njeru – Kaplan & Stratton – Kenya

> Sipho Ziga – Armstrongs Attorneys – Botswana

> Yemi Kehinde – Giwa-Osagie & Co – Nigeria

Should you have any queries or require assistance from LEX Africa members, pleaseemail [email protected]

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mailto:[email protected]

AFRICAN COMPETITION LAW DEVELOPMENTS

ANGOLAN PERSPECTIVE

FARIA DE BASTOS & LOPES - ADVOGADOS

LUANDA - ANGOLA

RUA DOS ENGANOS, N.º 1, 7.º ANDAR, LUANDA

INTRODUCTION

THIS PRESENTATION IS AIMED TO PROVIDE THE LEX AFRICA MEMBERS BRIEF OVERVIEW OF THE

DEVELOMPENT OF THE ANGOLAN COMPETITION ENVIROMENT.

DESPITE THE FINANCIAL CRISES THAT AFFECTS ITS ECONOMY, ANGOLA REMAINS THE RIGHT CHOICE

FOR COMPANIES TO INVEST AS IT HAS A GREAT ECONOMIC POTENCIAL, POLITICAL STATBILITY AND A

PREVILEDGED GEOGRAPHICAL LOCATION. ANGOLA HAS AN ENOURMOUS VARIETY OF NATURAL

RESOURCES, INCLUDING OIL, MINERALS, HYDRIC RESOURCES AND VAST AREAS OF ARABLE LAND.

THEREFORE, THE IMPLEMENTATION OF PRINCIPLES AND RULES WHICH SAFEGUARD THE HEALTHY

COMPETITION BETWEEEN TRADERS, IS DEFINITIVELY MANDATORY TO THE IMPROVEMENT OF THE

BUSINESS ENVIROMENT.

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2. COMPETITION IN ANGOLA BACKGROUND

Starting from the Independence, the Angolan economy can be divided in four

diferente stages, namely:

Stage 1 from 1975 to 1984

Centralized Economy Period

Characterized by the to the massive abandon of the country by angolan citizens

including traders, truckers, engineers, technicians, etc.

Public companies were the only entities authorized to provide goods and services,

not being allowed to private equal opportunity

Monopolization of the commerce and services by the state apparatus where

public companies responsible for the distribution of goods and services

throughout the country

Complete absence of competiition rules and principles.


Begining of the Economy Liberalization

Incipient economy liberalization of the economy

Implementation of economic reforms that dictated the formal abolition of the

system of fixed prices and margin of cmmercialization

Formalization of end of the state monopoly in some sectors of activities and

begining of the privatization of some of state companies

Lack of transparency in the privatization of state companies process

Maintenance of the state monopoly in the principals sectors of activity and chain

of supply

Severe restrictions to competition

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The trade regime reforms

Approval of several diplomas that led to the reform of the trade regime

Angola joined to World Trade Organization

Abolishment of the procedure of previous licensing for external trade operations

and the importation registration bulletins

More companies of the more importante sectors of services and activities were

handed over to private investors that alongside with public companies would, in

fact, be working under monopoly conditions.

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Stage 4 from 2001 until today

Opening of the Angolan Economy to Private Investment

Angola admission to the SADC comunity on 10th March 2003

Promotion of the private investment

Liberalization of some of the strategic sectors of activity such as oil,

telecommunications, banking and insurances

In 2015 was created the Competition and Prices Institute, subjected to Minister of

Finance oversight

Maintenance of servere distortions to competition rules and principles due to the

interfierence of the state in the economy via administrative procedure

Still absent of the legal panorama the Competition Law now approved

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3, COMPETITION LAW MAIN ASPECTS

Determines the creation of the Competition Regulatory Authority subject to presidential

oversight

Wide scope, being applicable to private and public companies and to the all sectors of

activity in Angola or which have impact in the Angolan territoty;

Forbiddens cartelization agreements as well as the agreements between the companies

its suppliers and / or clients in the verticals relationships;

Forbiddens abusive acts from companies in dominant position

Also forbiddens the abusive conducts by companies in dominant positions and the

abusive exploitation practices leading to clients and or suppliers economic dependence.

States a prior control of all operations that might result in the concentration of the efffective

domain or the possibility to gain dominant position, namely the acquisition of total or the

majority of the capital share, acquisition of property rights, use and enjoyment of total or a

portion of a company assets

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4. COMPETITION ENVIROMENT CHALLENGES

Creation of the Competition Regulatory Authority realy independente from political

influence

Changing of several other legal diplomas that still determines the stablishment of

unfair advantages to public companies and / national citizens

Complete the process of opening the economy to private investors

Removal of the legal obstacles that prevent the stablishment of an healthy and safe

competition enviroment with

Thank you very much for your attention

Rua dos Enganos, n.º1, 8º andar

Luanda, ANGOLA

Tel.: + 244 222 370 370/ 397 073/ 390 920

Fax: + 244 222 393 273

Email: [email protected]

Informação Adicional

www.fbladvogados.com

[email protected]


DEVELOPMENTS

June 2018

Célia Francisco

African Competition Law Developments

Mozambique

Competition Law Developments - Mozambique

In Mozambique the Competition is relatively new, with the legislation regarding the

issue enacted in 2013 and 2014 as follows:

Law 10/2013 of 11 April - Competition Law;

Decree 97/2014 of 1 August – Regulation of Competition Law;

Decree 37/2014 of 1 August – which created the Regulatory Authority of

Competition, trough the approval of the Organic Statute of the Competition

Authority.

The Competition Law is applicable to all activities and focus on prohibited acts and

considered as anti competitive practices as well as on the enterprise concentration

in order to avoid such conducts and behaviors that results in distortions or

restrictions of healthy and fair competition.

The Regulatory Authority of Competition which was created by Decree 37/2014 of

1st August, is not yet functioning, meaning that the dispositions on competition

contained in the Competition Law and its Regulation, which must be supervised or

regulated by it have little or practical no consequence.

Competition Law Developments - Mozambique

The Regulator Authority of Competition is the competent authority on competition

matters, falling under this entity the powers and competence of supervision, regulation

and sanction. The prohibition of anti-competition practices as well the control of

operations of concentration of enterprises is exercised by the same authority.

Because the ARC is not yet functioning, there are procedures contemplated under the

Competition Law and its Regulation that cannot be implemented/complied with, such

as:

The filing obligation on concentration transactions;

requests for the exemption of filing obligations;

Then authority should approve a Regulation for Automatic Exemptions from the

filing obligations which shall define the categories of the prohibited practices that

benefit from automatic exemptions.

Thank you!

Obrigado!


DEVELOPMENTS

Recent trends in Competition and Consumer Protection law in

Zambia

Sydney Chisenga

Partner - Dispute Resolution and Competition

Introduction• Zambia has had a competition law since 1994. It is one of the oldest competition regimes

in Africa.

• The old Competition law was called the Competition and Fair Trading Act which wasrepealed and replaced with the current law called the Competition and ConsumerProtection Act number 24 of 2010 (the “Act”).

• The Act, statutory instruments and guidelines regulate both competition and consumerprotection in Zambia.

• The Competition law is enforced by the Competition and Consumer protectionCommission (the “Commission”).

• Decisions, orders or directives of the Commission can be appealed against to theCompetition and Consumer Protection Tribunal within 30 days.

Recent trends in restrictive and anti-competitive trade practices

• The Act regulates cartel conduct which includes bid rigging, market allocation, price fixing,production quota, collective refusal to supply goods and services etc.

• The penalties include administrative fines of up to 10% of the enterprise’s annual turnover andcriminal prosecution of the offenders.

• Zambia now has a leniency programme in place since early 2017.

• The effectiveness of the leniency programme is yet to be tested. There are still questions as towhether the DPP has powers to cloth enterprises with immunity through consulation.

• The CCPC has conducts dawn raids in Zambia, and has done so. For example, on fertilizercompanies, insurance garages, bakeries etc all suspected to be involved in cartel conduct.

Recent trends in abuse of dominance

• In Zambia, a firm is considered to be dominant if it has 30% market share. The concept of collectivedominance also exists if not more than two enterprises have a market share of 60%.

• Being dominant is not illegal but the abuse of dominance which includes:

Applying dissimilar conditions to equivalent transactions.Excessive pricing.Unfair and discriminatory pricing.Denying any person access to an essential facility.Selling goods below their marginal or variable cost, etc.

• The CCPC has in the recent past fined dominant firms in the cement and sugar industry on allegations ofexcessive pricing, price discrimination and these cases are before the Competition and Consumer ProtectionTribunal.

Recent trends in consumer protection

• Issuance of red alerts by the CCPC on suspected contaminatedproducts. For Example, suspected tastic rice and some beef productsfrom South Africa.

• Fining of firms that do not resolve consumer complaints that arefound to be in violation of the consumer protection provisions of theAct.

• The biggest complaint by firms is that the fines by the CCPC aredisproportionate.

Measures on how to protect businesses• Conduct regular in-house competition trainings to members of staff;

• Develop an internal competition and consumer protection policy;

• Conduct a competition and consumer protection audit of your firm to assess levels of competition lawcompliance;

• Ensure compliance within the firm;

• Keeping abreast with developments in the market and changes in the law;

• Conduct dawn raid training within your firm; and

• Consult competition and consumer protection experts which mitigates the risk of being fined by the CCPCand prevent possible prosecution.

Future trends

• The CCPC has increased its staffing levels so there will be moreenforcement of the Act so compliance level must improve by firms;

• Dominant firms will be under more scrutiny as the economy grows;

• There will be an increase in mergers due to the good businessenvironment in Zambia; and

• The public will have more consumer protection cases reported to theCommission due to increased awareness of consumer rights due toaccess to social media etc.


DEVELOPMENTS

JUNE 29, 2018 | LEX AFRICA SEMINAR 2018

AFRICAN COMPETITION LAW DEVELOPMENTS - KENYAN &

COMESA PERSPECTIVE

Peter NjeruPartner Kaplan & Stratton

COMPETITION REGULATORS• Upward trend across the continent in regulating competition law. In 2000 only 13

countries had competition laws in place. As of 2015 this figure had nearly doubled to 32

countries of which 25 jurisdictions have operational competition authorities.

• At a pan African level there are potentially 6 regulators: COMESA, CAR, CEMAC, WAEMU,

EACCA and ECOWAS. SADC doe not have legislation in place instead it has a cooperation

framework.

• Kenyan related transactions are potentially regulated by 3 regulators:

• the Competition Authority of Kenya (at a national level);

• the East African Community Competition Authority; and

• the COMESA Competition Commission at a regional level.

LEX AFRICA ANNUAL GENERAL MEETING 2018

COMPETITION REGULATORS


•Breaking Down Barriers Unlocking Africa’s Potential through Vigorous Competition Policy (June, 2016)

ANTICIPATED FUTURE TRENDS• Cooperation agreements between regional and national

authorities. CCC & CAK looking into resolving the dual filing issue.

• The EACCA could be fully operationalized by 2019.

• More dawn raids – currently conducted in South Africa, Kenya,Zambia, Namibia.

• Increase in civil suits by persons affected by competitionauthorities decision.

• More national legislations – South Sudan and Uganda have draftcompetition laws.



DEVELOPMENTS

COMPETITION LAW UPDATE

Sipho Alec Ziga - Partner

BOTSWANA

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A new Competition Act has been promulgated and is to

come into force on notice.New

Competition Act The Competition Authority will be continued as if

established under the Act and under the new name

being the Competition and Consumer Authority

(“Authority”).

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The Authority will have a new function being to report

the investigation of criminal matters investigated under

the Act to the Botswana Police Service [Section 5 (2) r]

Highlights continued

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The Act has introduced the following criminal offences;

entering into prohibited horizontal agreements. Directors or

employees of the enterprises who contravene the provisions

commits an offence and are liable to a fine not exceeding

P100,000 or to an imprisonment term not exceeding 5 years.

[Section 26]

entering into prohibited vertical agreements. Directors or

employees of the enterprises who contravene the provisions

commits an offence and are liable to a fine not exceeding

P50,000. [Section 27 (3)]

implementation of a merger without notifying the Authority or

obtaining approval. Such enterprises shall be liable to a fine not

exceeding 10% of the consideration or combined turnover of the

enterprises whichever is higher. [Section 58 (3)]


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The Act also sets out conducts which would be deemed to be abuse

of dominance by enterprises having a dominant position in their

markets:

Predatory conduct;

Loyalty rebates;

Tying and bundling conduct;

Margin squeeze;

Refusal to supply or deal with enterprises;

Exclusive dealing;

Discriminatory pricing; and

Requiring customers to deal with or not to deal with competitors

[Section 31 (1)]


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The Act also creates the Competition and Consumer

Tribunal which shall adjudicate breaches of the provisions

of the Act or appeals against decisions of the Authority.

Persons aggrieved by the decisions of the Tribunal may,

within 30 days of such a decision, appeal or make an

application for review to the High Court.


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Recent Court Decisions

THE RABBIT CASE

AFRICAN COMPETITION LAW DEVELOPMENTS

QUESTIONS?

THANK YOU FOR ATTENDING THIS SESSION

african competition law developments...approval of several diplomas that led to the reform of the...

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