Frequently Asked Questions

The enforcer of the legislation is the COMESA Competition Commission (the “Commission”) established under Article 6 of the Regulations. The Commission was launched in December 2008 and is based in Lilongwe, Malawi. The Commission officially commenced operations on 14^th January 2013. The Commission is composed of the Secretariat headed by a Director which is responsible for investigation; a Board of Commissioners mandated with adjudicative functions; and the Committee of Initial Determination is part of the Board and it also performs adjudicative functions.

In conducting its investigations, the Commission may in accordance with the applicable provisions of the Regulations and in keeping with the principles of natural justice:

•  order any person to appear before it to give evidence
• require the discovery or production of any document or part thereof
• take any other reasonable action which may be necessary for furtherance of the investigation.

Further, in carrying out the duties assigned to it by the Regulations, the Commission may undertake all necessary investigations into undertakings and association of undertakings. The Commission officials are, to this effect, empowered to:

• examine the books and other business records;
• take copies or extracts from books and business records;
• ask for oral explanations on the spot;
• enter any premises, land and means of transport of undertakings.

In conducting its investigations, the Commission may in accordance with the applicable provisions of the Regulations and in keeping with the principles of natural justice:

•  order any person to appear before it to give evidence
• require the discovery or production of any document or part thereof
• take any other reasonable action which may be necessary in furtherance of the investigation.

Further, in carrying out the duties assigned to it by the Regulations, the Commission may undertake all necessary investigations into undertakings and association of undertakings. The Commission officials are, to this effect, empowered to:

• examine the books and other business records;
• take copies or extracts from books and business records;
• ask for oral explanations on the spot;
• enter any premises, land and means of transport of undertakings.

In enforcing the provisions of the Regulations, the Commission pursues the objectives of promoting competition by preventing restrictive business practices and other restrictions that deter the efficient operation of markets, enhancing the welfare of the consumers in the Common Market and protecting consumers against offensive conduct by market actors.

With the commencement of the enforcement of the COMESA Competition Regulations on 14^th 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 the COMESA levels 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 the 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 an 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 the Member States. The Regulations do not apply unless the agreement or conduct has an appreciable effect on trade between the Member States and restricts competition in the Common Market.

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.

The Regulations apply to all economic activities conducted by private or public persons within, or having an effect within, the Common Market and which have an appreciable effect on trade between the Member States and restrict competition in the Common Market.

The Regulations cover the following major areas:

• Mergers and other forms of acquisitions where both the acquiring firm and target firm, or either the acquiring firm or target firm, operate in two or more COMESA Member States.
• Anti-competitive Business Practices include horizontal and vertical agreements, concerted practices and abuse of dominance which have a cross-boarder effect.
• Consumer protection violations include false or misleading representation and product service standards among others having cross border effects.