Guidance on Treatment of Confidentiality Claims Submitted to the COMESA Competition Commission

PRACTICE NOTE NO. 01 OF 2022 

GUIDANCE ON THE TREATMENT OF CONFIDENTIALITY CLAIMS SUBMITTED TO THE COMESA COMPETITION COMMISSION

INTRODUCTION

1. The COMESA Competition Regulations of 2004 (the “Regulations”) empowers the COMESA Competition Commission (the “Commission”) to request for submission of information in furtherance of assessments or investigations carried under Parts 3, 4, and 5 of the Regulations relating to restrictive business practices, mergers and acquisitions and consumer protection.

2. The concerned parties are required to claim confidentiality in a prescribed manner regarding the information submitted to the Commission as per the guidance provided under the Confidentiality Claim Form-(Form 2). Upon assessment of the confidentiality claim and engagement with the parties and reaching an agreement on confidential information, the Commission grants confidentiality.

3. Upon the conclusion of an assessment or an investigation, pursuant to Rule 28 of the COMESA Competition Rules, the Commission publishes a summarized version of its decision on its website. These decisions often include information provided by concerned parties and also information gathered during the assessment or investigation. Prior to the publication of such decisions, the Commission has in the past engaged the owners of the information to confirm that the decisions do not contain business secrets or other confidential information. The Commission has however noted that the current practice has resulted in delays in the publication of decisions.

4. The Commission therefore wishes to remind all undertakings, associations of undertakings and persons that they must clearly identify all the confidential information in any submissions and/or documents made to the Commission and relevant justifications, through the submission of a duly completed Form 2, which will then be assessed by the Commission and then form the basis for granting or not granting confidentiality as may be requested by the concerned parties.

5. Parties are advised that henceforth, the Commission, in consideration of information to be disclosed in decisions that it intends to publish, will be guided by the submitted and completed Form 2. The Commission shall not assume liability over disclosure of information over which parties have not claimed confidentiality in the prescribed manner.

6. The Commission also wishes to clarify that the foregoing does not affect the Commission’s practice where there is a disagreement between the parties and the Commission on what qualifies as confidential information claimed in the Form 2. In such instances, the parties shall be provided an opportunity to make further submissions, and if the parties remain aggrieved, the matter will be referred to the Committee Responsible for Initial Determinations for its consideration and decision.

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Notice of Closure of the Office of the Registrar on Official Holidays in the Year 2022

CCC Notice No. 1 of 2022

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 2022 on the following dates:-

“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.”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:

The Registrar

COMESA Competition Commission

5th Floor, Kang’ombe House

P.O. Box 30742

Lilongwe 3, Malawi

Office Phone: +265 (0) 1 772466

Email: mdisasa@comesa.int or compcom@comesa.int

www.comesacompetition.org

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Notice of Closure for 2021 Festive Holidays

CCC/NOTICE/2/2021

NOTICE OF CLOSURE FOR 2021 FESTIVE HOLIDAYS

It is hereby notified that the COMESA Competition Commission (the “Commission”) will be officially closing for the 2021 festive holidays as from Monday 20^th December 2021 to Sunday 9^th January 2022 and will reopen on Monday 10^th January 2022.

Kindly take note that during this period, the Office of the Registrar of the Commission will be closed for notification of transactions. With regard to transactions already notified or filed and under consideration, the computation of time during this period will be adjusted in accordance with Rule 3(2) of the COMESA Competition Rules which reads:

 “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.”

The Commission wishes all its stakeholders a Merry Christmas 2021 and Happy New Year 2022.

The Registrar

COMESA Competition Commission

5th Floor, Kang’ombe House

P.O. Box 30742

Lilongwe 3, Malawi

Office Phone: +265 (0) 1 772466

Email: mdisasa@comesa.int or compcom@comesa.int

comesacompetition.org

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COMESA Competition Commission Commences Investigations Into Possible Market Allocation and/or Territorial Restrictions by Beer Manufacturers Operating in the Common Market

 ACBP NOTICE OF INVESTIGATION 1 OF 2021                          

DATE: 24 JUNE 2021

NOTICE OF COMMENCEMENT OF INVESTIGATIONS

Notice is hereby given to interested stakeholders and the general public that pursuant to Article 22 of the COMESA Competition Regulations (“the Regulations”), the COMESA Competition Commission (the “Commission”) has commenced investigations into potential violations of Articles 16 and 19 of the Regulations by  beer manufacturing companies operating in the Common Market, namely: AB InBev, Castel, Diageo and Heineken.

Article 16 of the Regulations prohibits all agreements which may affect trade between Member States and have as their object or effect the prevention, restriction or distortion of competition in the Common Market. Furthermore, Article 19 prohibits agreements or arrangements between competitors which, among others, allocate customers and markets within the Common Market.

The Commission has observed that the manufacturers have market allocation arrangements among themselves and/or territorial restrictions in their distribution agreements with third-party independent distributors. The Commission has preliminary concerns that the market allocation and territorial restrictions reinforce national borders thus affecting trade between Member States and restricting competition in the Common Market. As such, the Commission will assess the agreements and existing arrangements to determine their effect in the Common Market and apply appropriate measures as per the Regulations.

It should be noted that the commencement of investigations neither presupposes that the conduct being investigated is anti-competitive nor that any of the mentioned beer manufacturing companies has violated the Regulations. The Commission will, in accordance with the provisions of Part 3 of the Regulations, conduct an inquiry to determine whether the alleged conduct has as its object or effect the prevention, restriction or distortion of competition in the Common Market or in a substantial part of it.

In view of the foregoing, the Commission hereby gives notice to all interested stakeholders and the general public to submit their representations to the Commission by emailing them to: smaseko@comesa.int.

If you wish to seek further details and/or clarifications on any aspect of the Commission’s investigation, you may contact Ms. Siboniselizulu Maseko, Senior Analyst, on Tel: +265 (0) 1 772 466 or E-mail: smaseko@comesa.int.

All representations submitted to the Commission will be treated with the strictest confidentiality and will only be used for the purposes of this investigation.

CCC Notice of Commencement of Investigations No 1 of 2021

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Cautionary Notice on Restrictive Business Agreements

CCC-RBP-Notice-1-of-2021

The COMESA Competition Commission (“the Commission”) is established under Article 6 of the COMESA Competition Regulations (“the Regulations”). The mandate of the Commission is to promote and encourage competition by preventing restrictive business practices and other restrictions that deter the efficient operation of markets, thereby enhancing the welfare of the consumers in the Common Market and to protect consumers against offensive conduct by market actors.

Article 16 of the Regulations prohibits all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and may have as their object or effect the prevention, restriction or distortion of competition within the Common Market. Premised on this, at the commencement of its operations in 2013, the Commission invited undertakings operating in the Common Market to seek and apply for authorisation or exemption of their existing and contemplated agreements in accordance with Article 20 of the Regulations.

The Commission has noted with concern that some undertakings operating in the Common Market, have been engaging in, and continue to engage in, agreements that include, among others restrictions, restrictive territorial clauses, market allocation and hence contributing to forming barriers to trade in the Common Market. The Commission has in its possession anecdotal evidence of certain sectors who have continued to engage in the said conduct(s). To date, the Commission has engaged in soft enforcement for a reasonable period, by engaging undertakings and requesting them to notify such agreements in accordance with Article 20 of the Regulations and through numerous awareness programs.

The Commission has considered that it has given ample time to undertakings operating in the Common Market to sanitise their agreements pursuant to Article 20 of the Regulations. In view of this, the Commission hereby notifies undertakings operating in the Common Market and the general public, that it shall henceforth focus more on hard enforcement through screening, detection, investigation and punishment of offenders.

TAKE NOTE that agreements which are found to contravene Part 3 of the Regulations will attract sanctions under the Regulations, which may include fines of up to 10% of annual turnover units of account in the Common Market pursuant to Rule 45 of the COMESA Competition Rules. The Commission will work closely with the national competition authorities in the Member States to ensure that offenders are detected, investigated and punished.

The Commission accordingly urges undertakings operating in the Common Market to desist from entering into any agreements or arrangements which deter the efficient operation of markets and restrict trade between Member States without obtaining the necessary authorization from the Commission.

If you wish to seek further details and/or clarifications on any aspect of this Notice, you may contact Mrs Stellah Onyancha, Manager, Enforcement & Exemptions on Tel:+256(0)1772466 or email sonyancha@comesa.int.

Dr. Willard Mwemba

Acting Director & Chief Executive Officer

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