Legal updates and opinions
News / News
Take note and prepare to comment – Proposed Amendments to the COMESA Competition Regulations
and Chiara Ferri, Candidate Attorney
On 24 January 2024, the COMESA Competition Commission (“CCC”) published its Draft COMESA Competition and Consumer Protection Regulations (“Draft Regulations”). COMESA competition law is aiming to keep pace with current market developments with various regulations being amended and replaced. Written comments on the Draft Regulations by stakeholders are due by 14 February 2024. It is therefore crucial to consider some of the most noteworthy proposed amendments and what effect these changes may have for organisations in the current competition arena.
Determination of Dominance
The Draft Regulations seek to amend the CCC’s current determination of dominance. For example, the Draft Regulations specifically provide that if an undertaking holds a market share of at least 30% in the relevant market, it will be presumed to be dominant. In addition, it is stipulated that in determining whether an undertaking is dominant, consideration must be given to a host of factors, the most notable of which are –
- relevant market defined in terms of the product and the geographic context;
- barriers to entry, expansion and exit;
- history of competition and rivalry between competitors in the sector of activity;
- level of actual or potential competition in terms of number and size of competitors; and
- production capacity and product demand.
Draft Regulations Binding Member States
The Draft Regulations stipulate that Member States are precluded from relying on their own national laws where competition related conduct is covered under the CCC Regulations. The Draft Regulations seek to reinforce the notion that COMESA must be a one-stop-shop and therefore curtails the duplication of enforcement between national competition authorities and COMESA.
Transaction Value Threshold
Another proposed introduction in the Draft Regulations is that mergers in the digital market industry, which exceed a specified transaction value, must be notified to the CCC. The Draft Regulations neglect to define what a digital market industry is and it therefore remains unclear as to whether there are different thresholds for various markets.
Public Interest Grounds
The introduction of specific public interest grounds also form part of the Draft Regulations. If these are implemented, merging parties ought to be cognizant that the CCC will pay equal attention to public interest as it will to competition considerations.
Abuse of Dominance
On a final note, the Draft Regulations maintain the Current Regulations’ approach which treats abuse of dominance as an outright prohibition. This rigid stance runs the risk of ignoring nuanced market dynamics. This could hinder legitimate conduct which may enhance efficiency and benefit consumers. In the comings days, practitioner workshops will be held to discuss and comment on the CCC’s Draft Regulations. For access to the Draft Regulations, please click here.
Latest News
To interdict or not to interdict: Parties continue to fall in the same pitfalls
Securing an interdict It has long been held, per Loomcraft Fabrics CC v Nedbank Ltd and another [1996] 1 All [...]
Can a Business Rescue Practitioner and a Curator Bonis hold hands?
The recent High Court judgment in National Director of Public Prosecutions v Knoop N.O and others; National Director of Public [...]
The Rise in Responsible and ESG Investment
ESG Framework by Natalie Scott, Director, and Janice Geel, Candidate Attorney The King IV Report on Corporate Governance for South [...]
When is Disclosure Voluntary for VDP Relief?
Voluntary Disclosure Programme (VDP) The Voluntary Disclosure Programme (VDP) is a disclosure programme that allows taxpayers to come forward on [...]
UPDATE | Important Notice for Kenya Imports (Recordation)
Mandatory Recordation of Intellectual Property Rights as of 1 July 2022 "deadline extended to 1 January 2023" Kenya's Anti-Counterfeit (Recordation) [...]
National Land Reform Summit considers new modes of landholding tenure
Deputy President David Mabuza leading Inter-Ministerial Committee on land reform convened the Communal Land Administration and Tenure Summit on 27 [...]