NATIONAL COMPETITION AUTHORITIES OF COMESA MEMBER STATES AND THE COMMISSION

  1. WITH THE INTRODUCTION OF THE REGULATIONS, HOW DO THEY INTERACT WITH THE NATIONAL COMPETITION LAWS?

With the commencement of the enforcement of the COMESA Competition Regulations on 14th January 2013 there are now two separate legal regimes which govern the enforcement of competition law and policy in the COMESA Member States, namely:

  1.  The National Competition laws: these are the national legal orders comprising the respective bodies of legal rules within each of the COMESA Member States.
  2. The Regional Legal Framework: these comprise the body of legal rules created at COMESA level such as the COMESA Competition Regulations and Rules.

Given the two legal orders, the national order applies to the enforcement of anti-competitive practices emanating at national level hence, enforced by the national competition authorities in their respective Member States, whereas the regional framework is invoked generally where there is cross border impact. The impact of cross border trade is implicit prerequisite in light of the wording of Article 3(1) of the Regulations. Consequently, the Commission essentially can only intervene when there is an effect on trade between Member States. The Regulations do not apply unless the agreement or conduct has an appreciable effect on trade between Member States and restricts competition in the Common Market.

 

2. WHAT IS THE WORKING RELATIONSHIP BETWEEN THE COMMISSION AND THE NATIONAL COMPETITION AUTHORITIES OF THE COMESA MEMBER STATES?

The effective enforcement of the Regulations largely depends on an effective working relationship between the Commission and the national competition authorities of the Member States. One of the functions of the Commission under Article 7(d) of the Regulations is to cooperate with competition authorities in Member States. Rule 40 of the COMESA Competition Rules (“the Rules”) outlines the liaison process between the Commission and the competent authorities of the Member States in establishing existence of infringements on applications and notifications and in reaching decisions. The same Rule further stipulates that the competent authorities of the Member States shall have the right to express their views upon the procedure taken by the Commission.

Rule 43 of the Rules also stipulates that the competent authorities of the Member States shall undertake investigations at the request of the Commission and the officials of the Commission may assist the officials of a national competition authority in carrying out their duties. Conversely, under Rule 44 of the Rules, officials of the competent authority of a Member State in whose territory the Commission staff are conducting investigations may at the request of the competent authority or the Commission, assist the officials of the Commission in carrying out their duties.