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COMESA COMPETITION COMMISSION GUIDELINES ON MARKET DEFINITION, RESTRICTIVE BUSINESS PRACTICES AND ABUSE OF DOMINANCE APPROVED

The COMESA Competition Commission (the “Commission:) wishes to inform the general public that the Board of Commissioners at its meeting held on 2nd April 2019 approved three Guidelines prepared in accordance with the COMESA Competition Regulations (the Regulations) and Rules namely:

The three Guidelines were prepared in accordance with international best practice in competition law and policy and had various consultations with National Competition Authorities of COMESA Member States; lawyers in the region and beyond; and other stakeholders.

 

Particularly, the Guidelines on Restrictive Business Practices deals with the application of Article 16 (1) of the Regulations and it was prepared with the aim to provide clarity and predictability as regards the general analytical framework of the Commission in determining cases of vertical and horizontal agreements.

 

Likewise, the Guidelines on Abuse of Dominance deals with the application of Article 18 of the Regulations and it was prepared with the aim to provide clarity, predictability and transparency as regards the general analytical framework employed by the Commission in determining cases of abuse of dominance.

 

As regards the Guidelines on Market Definition, it provides the framework applied by the Commission when assessing competition cases including mergers and acquisitions, abuse of dominance and vertical and horizontal restrains. The same Guidelines further provides users of the Regulations predictability and regards the Commission’s approach to market definition.

 

George Lipimile

Director & Chief Executive Officer

 

Click here to download the COMESA Guidelines on Market Definition

Click here to download the COMESA Guidelines on Restrictive Business Practices

Click here to download the COMESA Guidelines on Abuse of Dominance

 

ADDENDUM NO 1 TO CALL FOR EXPRESSION OF INTEREST: SUPPORT FOR COMMITTEE RESPONSIBLE FOR INITIAL DETERMINATION IN THE MATTER INVOLVING CONFÉDÉRATION AFRICAINE DE FOOTBALL AND OTHERS

This serves to notify prospective bidders that the COMESA Competition Commission (the Commission), wishes to issue this addendum amending the Call for Expression of Interest REF: CCC/CEI/7/2/2019 on the Support for Committee Responsible for Initial Determination in the matter involving Confederation Africaine De Football and others

 

  1. Section B on Background of the Commission’s case against Confederation Africaine De Football and Others

 

1.1.      By the deletion of paragraph 4 and substituting it with the following:

 

“The Commission’s investigation report has led to the finding that provisions contained in the CAF/LS agreements and the other subsequent commercial agreements with broadcasters and sponsors relating to the above issues contravened Article 16(1) of the Regulations as they are likely to affect trade between Member States and have as their effect the restriction of competition in the market.”

 

1.2.      By the deletion of paragraph 6 and substituting it with the following:

 

“After completing its investigations, the Commission is planning to conduct a hearing before the Committee Responsible for Initial Determination(CID).”

 

  1. Section E on Expected outputs and deliverables

 

  • By the deletion of paragraph 2 subsection (i) and (ii) and substituting them with the following:

i) "Hold preparatory meetings with the CID on the adequacy and relevance of available information submitted by the Commission and the respondents.”

ii)“Prepare notes during the preparatory meetings and guide the CID in the analysis of the information provided on the scope of work under Section (D) above.”

 

         George Lipimile

The Director and Chief Executive Officer

COMESA Competition Commission

 

Click here to download the addendum to the Call for Expression of Interest:

Click here to download the Call for Expression of Interest: Support for CID in the matter involving confédération Africaine de football and others posted on 24th July 2019.

CALL FOR EXPRESSION OF INTEREST: SUPPORT FOR COMMITTEE RESPONSIBLE INITIAL DETERMINATION IN THE MATTER INVOLVING CONFÉDÉRATION AFRICAINE DE FOOTBALL AND OTHERS

  1. INTRODUCTION

The COMESA Competition Commission (the “Commission”) is an international body corporate established under Article 6 of the COMESA Competition Regulations (“the Regulations”). The Regulations are promulgated pursuant to Article 55 of the Treaty establishing the Common Market for Eastern and Southern Africa (“the COMESA Treaty”).

The Commission is responsible for enforcing the Regulations, whose purpose is promoting and encouraging competition by preventing restrictive business practices and other restrictions that deter the efficient operations of markets, thereby enhancing the welfare of consumers in the Common Market and protecting consumers from offensive conduct by market actors.  The Commission is composed of two enforcement institutions:

  • The Secretariat which is headed by a Director appointed under Article 9 of the Regulations. The Secretariat is also composed of staff members appointed by the Director with the approval of the Board. The Secretariat is responsible for carrying out investigations and advocacy work of the Commission among other things. The Commission’s Secretariat commenced its operations on the 14th of January 2013 and is located in Lilongwe, Malawi. The Commission’s Secretariat has so far 15 staff members; and
  • The Board of Commissioners which is established and appointed under Articles 12 and 13 of the Regulations respectively, is mandated with issuing determinations, performing adjudicative functions on any matter considered by it and hearing appeals among others. Pursuant to Article 13 (4) of the Regulations, the Chairperson of the Board may assign three of the Commissioners to constitute a Committee responsible for Initial Determinations of matters brought before it.

2. BACKGROUND OF THE COMMISSION’S CASE AGAINST CONFÉDÉRATION AFRICAINE DE FOOTBALL AND OTHERS

On 13th February 2017, the Commission commenced an investigation, pursuant to Article 22 of the COMESA Competition Regulations (“Regulations”), into a possible violation of Part 3 of the Regulations, specifically Article 16 by the Confédération Africaine de Football (“CAF”).

The investigation relates to the agreements entered into between CAF and Lagardère Sports S.A.S (“Lagardere Sports”) in 2007 for the intermediation of the media and marketing rights for CAF competitions for the periods 2009 to 2016(“CAF/LS Agreements”); which agreements were renewed in 2015 for the period 2017 to 2028.

Pursuant to the CAF/LS Agreements, Lagardere Sports entered into agreements with specific broadcasters and sponsors for the commercialisation of the media and marketing rights. Specifically, the agreements were entered into by CAF and/or Lagardere Sports with three broadcasters (Canal + Overseas; beIN Sports; SuperSport International (Pty) Ltd) and two sponsors (Orange Brand Services Limited; and, Total SA) for the commercialisation of the media and marketing rights respectively (collectively, the “Commercial Agreements”).

The Commission’s investigation report has led to the conclusion that provisions contained in the CAF/LS agreements and the commercial agreements relating to the above issues, contravened Article 16(1) of the Regulations as they affected trade between Member States and had as their effect the restriction of competition in the Common Market.

Article 8, Rules 21, 29 and 49 of the Regulations and Rules respectively provide that the Commission shall have regard to the principles of natural justice in conducting its investigations. Both the Commission and the Board in conducting their hearings and making recommendations and/or determinations shall give the undertaking(s), which are the subject of the proceedings the opportunity of being heard.

After completing its investigations, the Commission is of the view that there is need to conduct a hearing before the Committee Responsible for Initial Determination (CID).

For this purpose, the Commission intends to engage the services of a consultant in terms of Rule 25(8) and (10) of the Regulations to provide support to the CID before, during and after the hearing and specifically in the legal and economic analysis regarding violations of Article 16 of the Regulations by CAF and other Respondents.

3. OBJECTIVES

The objective of this consulting assignment is to provide a comprehensive legal, procedural and economic guidance to the CID into possible violations of Article 16 of the Regulations. Specifically, the consultant will provide support to the CID in assessing the evidence used by the Commission in arriving at its findings of the possible violation of the Regulations involving CAF and other Respondents. Further, the consultant will assess the defenses presented by the respondents on the said violations.

4. SCOPE OF WORK

The overall scope of the assignment is to undertake analysis on the anticompetitive conduct involving CAF and other Respondents. Specifically, the assignment will involve the following tasks. The consultant will support the CID as follows:

  • Provide guidance on the jurisdictional and procedural analysis to evaluate the alleged anticompetitive practices;
  • Provide guidance on the elements of the alleged breach of competition Regulations;
  • Provide detailed interpretation of Article 3 of the Regulations on appreciability;
  • Provide guidance on the Legal and economic tests that will be used;
  • Prepare for the oral hearing including:
    • The list of questions on which the respondents are required to make their views known;
    • Focal areas for debate or disputed areas; and
    • Specific issues which need to be clarified.
  • Address any questions that may be raised regarding the jurisdiction of the Commission on the case;
  • Advise on Article 16(4) submissions-What to take into account in the assessment and for better appreciation of the meaning of the terms;
  • Review information received from parties to the case;
  • Conduct relevant legal, jurisdictional, procedural and economic analysis;
  • Provide briefing notes on each of the alleged anticompetitive conduct;
  • Evaluate potential anticompetitive effect of the alleged anticompetitive conduct;
  • Provide guidance on potential remedies for the assessed case; and
  • Provide guidance for the preparation of the report of the hearing.

The consultant is expected to fully participate before, during and after the hearing and work closely with the CID. The specific schedule for the hearing will be defined in coordination with the Commission.

5. EXPECTED OUTPUTS AND DELIVERABLES

The consultant under the guidance of the Chairperson of the CID is expected to sit in the hearing in order to provide briefs and guidance on the proceedings of the hearing as stipulated under the scope of the assignment above.

The consultant shall undertake activities and payment will be made against deliverables to be submitted by him or her on completion of the specific deliverable of the assignment. The specific activities include:

  • Hold preparatory meetings with the Commission and prepare report to the CID to communicate the position on the adequacy and relevance of available information;

  • Hold preparatory meetings with the CID and prepare notes on the results of the analysis and tests conducted to evaluate the alleged anticompetitive practices and notes on potential remedies for the assessed case;

  • Sitting through the actual hearing; and

  • Hold post hearing meetings with the CID and prepare a report of the hearing.

6. COMPETENCE AND RELEVANT EXPERTISE

The consultant must have experience in advising competition agencies on effective competition law enforcement. Specifically, analysis of anticompetitive practices and experience in conducting economic analysis and in sports broadcasting and marketing or related field. Possession of expertise in the adjudication of sports related matters will be highly desirable.

7. SELECTION

The service will be awarded to the successful individual based on the most economically advantageous tender on factors such as quality of the proposed service and the indicative costs.

  •  APPLICATION

Responses to this call for expression of interest should include the following:

  • A proposal for the consultancy service;
  • A brief cover letter indicating relevant experience and any information about availability
  • Curriculum Vitae or profile of the Consultant;
  • Costs (in USD): The service providers should identify their rates which should be valid for the entire length of the assignment.

8.  TIME PERIOD

The service will have three phases:

First phase- The Consultant shall hold preparatory meeting with the Commission, prepare and submit a report to the CID on the adequacy and relevance of the available information and Prepare notes on analysis and tests conducted and notes on potential remedies for the assessed case and hold preparatory meetings with the CID-11 days;

Second phase- The Consultant will sit through the actual hearing and hold post hearing meeting with CID-5 days

Third phase- The Consultant will draft and submit a hearing report to the CID- 5 days

The Consultancy is envisaged to take 21 person days.

 9. SUBMISSION

Responses to this request for proposal (in PDF formats only) must be submitted to the Commission by 5th August, 2019 through the emailcompcom@comesa.int  or posted directly to:

The Director and Chief Executive Officer,

COMESA Competition Commission,

5th Floor Kang’ombe House,

P.O Box 30742,

Lilongwe 3,

MALAWI.

Tel. +265 1 772 466

 

Click here to download the Call for Expression of Interest

The COMESA Competition Commission Commitment on Strengthening Cross-Border Consumer Protection Collaboration

On
5th - 8th May, 2019, the COMESA Competition Commission
(the “Commission”) and other agencies responsible for enforcing consumer
protection and related laws in 20 African countries met in Livingstone, Zambia for
the 10th African Consumer
Protection Dialogue Conference under the theme “Celebrating a Decade Growth for African Cross Border Consumer
Protection Collaboration.”

The Commission, together with the other agencies, recognized the achievements made by the African Dialogue and African
countries including COMESA Member States  towards consumer protection, and pledged to
enhance their future collaboration.

The
Commission reaffirmed its commitment to the African Dialogue Livingstone
Principles (the “Livingstone Principles”) on Cooperation in Consumer Protection
Enforcement adopted in Zambia in 2013 and pledged to continue the
implementation of the Livingstone Principles.

The
Commission, inter alia, recognized that cross-border, regional and
international collaboration for a robust, more comprehensive consumer
protection regime remains crucial for consumer protection authorities, regional
bodies and relevant stakeholders.

The
Commission acknowledged that with increasing integration of markets and technological advances, the
relevant markets for consumer transactions are consistently extending beyond
national boundaries. Further, consideration should be given to the new
restructuring of markets at national, regional, and continental level directly
and indirectly affect the consumer in many ways.

In his
remarks, the Director and Chief Executive Officer of the Commission, therefore,
called upon participating countries and institutions to fully participate in
the African Continental Free Trade Area negotiations which will result in a continental
market that will present enormous challenges to consumer protection. The
Commission further called for the African continent to put in place a robust
legal framework for consumer protection.

George K. Lipimile,

Director and Chief Executive Officer,

COMESA Competition Commission,

P.O. Box 30742,

Lilongwe 3.

Malawi.

Email: compcom@comesa.int

Tel: +265 1 772 466

Website: www.comesacompetition.org

Click here to download the Press Release.

COMESA Competition Commission warns Ethiopian Airlines against violation of passenger rights through misleading statements of its Customer Services Policies

Click here to download the Press Release

COMESA Competition Commission Closes Investigation into Resale Price Maintenance in the Distribution Agreements between Coca-Cola Beverages Africa Proprietary Limited and its Distributors

                                                                            

In January 2018, the COMESA Competition Commission (“the Commission”) became aware of distribution agreements between Coca-Cola Beverages Africa Proprietary Limited(“CCBA”) and third-party distributors, which contained clauses stipulating the resale price at which various non-alcoholic beverages under trademarks of The Coca-Cola Company (“TCCC”) were to be sold. CCBA is a subsidiary of The Coca-Cola Company (“TCCC”).

Following a preliminary inquiry, the Commission instituted a formal investigation under Article 22 of the COMESA Competition Regulations (“Regulations”), by duly serving CCBA with a Notice of Investigation on 15th January 2018. The objective of the investigation was to determine whether the resale price maintenance clauses in the agreements were violating the Regulations.

The Commission noted that CCBA’s pricing behaviour was not effectively constrained by that of its competitors. Further that the stipulation of prices by a market leader was likely to lead to an inflation of prices of competing brands in the market where the incumbents set their prices in a similar fashion as that of the market leader. The overall effect of this would be higher prices for consumers.

To address the Commission’s concerns, the CCBA undertook to amend its agreements in the market by removing the clauses which stipulate the prices and profit margins for the sale of its products. Furthermore, the CCBA undertook to implement a compliance programme designed to ensure that in future its employees, management and directors do not engage in conduct that contravenes the Regulations.

The Commission will continue to monitor the sector closely.

NOTICE OF CLOSURE OF THE OFFICE OF THE REGISTRAR ON OFFICIAL HOLIDAYS IN THE YEAR 2019

CCC Notice No. 1 of 2019

 

NOTICE IS HEREBY GIVEN THAT the COMESA Competition Commission (“Commission”) shall observe the official holidays recognized by the host country, the government of Malawi. Consequently, the Commission would like to notify all its esteemed customers that the Office of the Registrar would be closed in the Year 2019 on the following dates:-

Official Holiday

Date
New Years’s Day 1st January 2019
John Chilembwe Day 15th January 2019
Martyrs Day 3rd and 4th March 2019
Good Friday 19th April 2019
Easter 21st and 22nd April 2019
Labour Day 1st May 2019
Kamuzu Day 14th May 2019
Election Day 21st May 2019
Independence Day  6th and 8th July 2019
Mother’s Day 15th October 2019
Christmas 25th December 2019

 

The Commission would like to remind the concerned persons that the closure of the Office of the Registrar would alter the computation of time by the Commission in accordance with Rule 3 (2) of the COMESA Competition Rules which read as follows:

 

“Where the time prescribed by or allowed under these Rules for doing an act or taking a proceeding expires on a Saturday or Sunday or on a day on which the office of the Registrar is closed, the act may be done or the proceeding may be taken on the first day following that is not a Saturday, Sunday or day on which that office is closed.”

Rule 3 (2) applies also to the computation of time regarding the 120 days time period taken to examine mergers and make a decision under Article 25 of the COMESA Competition Regulations.

 

 

NOTICE OF CLOSURE FOR 2018 FESTIVE HOLIDAYS

It is hereby notified that the COMESA Competition Commission (the “Commission”) will be officially closing for the 2018 festive holidays as from Thursday 20th December 2018 to Sunday 6th January 2019 and will reopen on Monday 7th January 2019.

Please take note that during this period, in accordance with Rule 3(2) of the COMESA Competition Rules, the Office of the Registrar of the Commission will be closed for notification of transactions. During this period, stakeholders are invited to contact Mr Ali Kamanga at akamanga@comesa.int or Ms Siboniselizulu Maseko at smaseko@comesa.int for any assistance and clarification.

The Commission wishes all its stakeholders a Merry Christmas 2018 and Happy New Year 2019.

NOTICE OF APPOINTMENT OF THE COMESA COMPETITION COMMISSION BOARD OF COMMISSIONERS

CCC Notice No. 3 of 2018

 

The COMESA Competition Commission (“the Commission”) wishes to inform the general public that pursuant to Article 13 (1) of the COMESA Competition Regulations (“the Regulations”), the COMESA Council of Ministers, at its meeting held in Lusaka on 15th July, 2018, approved the appointment of individuals from the Member States to serve on the new Board of the Commission for the next three (3) years.

 

The composition of the new Board of the Commission is as follows:

 

Country Commissioner Gender Status
1. Djibouti Ali Hamadou Ali Kako M Newly appointed
2. DRC Trudon Kala Nzembela M Appointed in December 2015
3. Egypt DrAmira Abdel Ghaffar Mohamed. F Appointment renewed
4. Eswatini Thembelihle Precious Dube (Nee Dlamini) F Newly appointed
5. Ethiopia Michael Teklu Beyene M Newly appointed
6. Kenya Danson Mungatana M Newly appointed
7. Malawi Charlotte Wezi Malonda F Newly appointed
8. Mauritius Deshmuk Kowlesseur M Appointed in December 2015
9. Seychelles Francis Lebon M Newly appointed
10. Sudan Islam Tagelsir Ahmed Alhasan M Newly appointed
11. Uganda Patrick Okilangole M Appointment renewed
12. Zambia Brian M. Lingela M Newly appointed
13. Zimbabwe Ellen Ruparanganda F Newly appointed

Click here to download the Notice.

 

 

PRODUCT RECALL ON LIMITED NUMBER OF READY TO EAT SLICED COLD MEATS AND VIENNAS

CCC-CP-NOTICE-2 of 2018

WARNING NOTICE TO THE PUBLIC

Notice is hereby issued by the COMESA Competition Commission (the “Commission”) pursuant to Article 30 (1) (b) of the COMESA Competition Regulations (the “Regulations”), following its CCC-CP-Notice-No.-1-of-2018 on the Listeriosis Outbreak in South Africa, to warn the general public as an additional precautionary measure and avoid consumption of limited number of affected meat products.

Food safety is of a paramount important to consumers in the Common Market and the Commission takes all issues regarding the production of food, specifically those traded in the Common Market, seriously.

 

CCC-CP-Notice-No.-1-of-2018 was issued following the recent announcement of the Department of Health in South Africa on the source of the Listeriosis outbreak and safety recall notices by National Consumer Commission (NCC) of South Africa to Tiger Brands Unit – Enterprise Food and Rainbow Chickens Limited. In this respect, CCC-CP-Notice-No.-1-of-2018 warned consumers against the consumption of the recalled processed meat products which are sold ready-to-eat including polony, viennas/sausages and other cold meats. The Commission wishes to inform the public that CCC-Notice-No-2-of-2018 is issued, as an additional precautionary measure, to warn the consumption of a limited number of meat products, especially viennas and cold meats, listed below:

  • Wafer Thin Chargrilled Ham
  • Wafer Thin Roasted Chicken
  • Wafer Thin Smoked Ham
  • Wafer Thin Cooked Ham
  • Wafer Thin Smoked Chicken
  • Sliced Lean Ham
  • Ham Selection
  • Country Ham
  • Smoked & Roasted Gammon
  • Lunceon Meat
  • Cold Meat Assortment
  • Smoked VIennas
  • Red Viennas
  • Cocktail VIennas
  • Smoked Cheesy Viennas
  • Bulk Salami Sticks
  • Salami Sticks
  • Plain Sticks
  • Plain Salami Sticks
  • Spicy Salami Sticks
  • Plain Salami Bites
  • Coriander Salami
  • Spicy Salami Bites
  • Sliced Salami
  • Salami
  • German Salami
  • Sliced Peppered Salami
  • Spicy Salami
  • Local Chorizo

 

In this regard, the Commission wishes to inform the general public to surrender to relevant authorities of COMESA Member States among others Public Health Departments, any of the products listed above including opened and empty packaging. The Commission has further invoked Article 31 (2) (b) of the Regulations and directed the manufacturers of the said products to cease the exportation into or sale to the public by their distributors and related dealers in the Common Market until such a time when the situation returns to normalcy and the general public are informed accordingly.

 

Should you require more information or clarification on the matter you may contact the undersigned on +265 1 772 466 or email: glipimile@comesa.int.

Click here to download the Notice of the Commission issued on 15th March 2018, CCC-CP-Notice No-1-of 2018, Warning the Public on the Listeriosis Outbreak in South Africa.

Click here to download the English Version pdf format of the CCC-CP-Notice-2-of-2018.

Click  here download the French Version pdf format of the CCC-CP-Notice-2-of-2018.