Mergers and Acquisistions
1. What is a Merger?
In terms of Article 23(1) of the COMESA Competition Regulations (“the Regulations”), merger means 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 the competitor, supplier, customer or other person whether that controlling interest is achieved as a result of:
- the purchase or lease of the shares or assets of a competitor, supplier, customer or other person;
- the amalgamation or combination with a competitor, supplier, customer or other person; or
- any means other than as specified in sub-paragraph (a) or (b).
2. Are all Mergers Notifiable?
Not all mergers are notifiable. Only mergers that have a regional dimension should be notified to the Commission. Mergers with a regional dimension are those where both the acquiring firm and the target firm or either the acquiring firm or target firm operate in two or more COMESA Member States.
3. When must the Commission be notified of a Merger?
Once it is established that a merger is notifiable, a party to such a merger shall notify the Commission in writing of the proposed merger as soon as it is practicable but in no event later than 30 days of the parties’ decision to merge.
Any notifiable merger carried out without notifying the Commission shall have no legal effect and no rights or obligations imposed on the participating parties by any agreement in respect of the merger shall be legally enforceable in the Common Market.
4. Who should file the Merger?
The notification must be completed jointly by the parties to the merger or in the case of the acquisition of a controlling interest in one undertaking by another, the acquirer must complete the notification.
In the case of a public bid to acquire an undertaking, the bidder must complete the notification.
Each party completing the notification is responsible for the accuracy of the information it provides.