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1、 Competition in Africa Report 2024 IMPORTANT DISCLAIMER:The material in this report is of the nature of general comment only.It is not offered as legal advice on any specific issue or matter and should not be taken as such.Readers should refrain from acting on the basis of any discussion contained i

2、n this report without obtaining specific legal advice on the particular facts and circumstances at issue.Whilst the authors have exerted every effort to provide accurate and up-to-date information on laws and policy,these matters are continuously subject to change.Furthermore,the application of thes

3、e laws depends on the particular facts and circumstances of each situation,and therefore,readers should consult their lawyer before taking any action.Information contained herein is correct as at March 2024.Competition in Africa Report 2024 Baker McKenzie i Table of Contents Foreword.1 Geographical

4、Overview.4 Overview.5 Angola.14 Botswana.24 Cameroon.36 Cape Verde.46 Comesa.56 Cote dIvoire.68 Egypt.78 Eswatini.88 Ethiopia.100 Gabon.108 Gambia.120 Ghana.130 Kenya.142 Madagascar.162 Malawi.176 Mali.188 Mauritius.198 Morocco.214 Mozambique.224 Namibia.234 Nigeria.248 Rwanda.262 Senegal.272 South

5、Africa.282 Sudan.308 Tanzania.318 Togo.328 Tunisia.338 Uganda.350 Zambia.360 Zimbabwe.380 Competition in Africa Report 2024 Baker McKenzie 1 Foreword Competition law in Africa is rapidly transforming,with key trends including a growing focus on competition policy enforcement,competition protection,a

6、 focus on sustainable business practices and a sustained emphasis on public interest concerns.Competition laws and regulations continue to be introduced,amended and aligned with regional competition law,and there has been a general upward trend in collaborative discussions and market studies as a me

7、ans of improving and development antitrust laws and regulations.Competition authorities across the continent are playing an increasingly important role as champions,advocates and enforcers of competition policy and share the view that such policy is a key driver of economic growth.Regulators are als

8、o becoming increasingly connected,sharing information and ideas and working together to enforce competition laws.The African Continental Free Trade Area has also been pivotal in shaping a pan-African competition policy,aligning with the trend of fostering a consistent approach to public interest and

9、 further emphasising the growing collaboration amongst competition enforcers.The adoption of the Protocol on Competition Policy by the African Union Assembly of Heads of State and Government in February 2023 underlines this collective effort.Numerous African jurisdictions have strengthened their com

10、petition and antitrust regimes by way of amendments to existing legislation,a concerted focus on market inquiries,the introduction of new laws and regulations,and renewed fervour and political will to enforce existing laws.Country developments In Uganda,the Competition Act,2023 was signed into law i

11、n February 2024.The Act aims to control anti-competitive behaviour,agreements and any other related practices that adversely impact the Ugandan market.It also seeks to penalise and criminalise anti-competitive practices.A national competition and consumer protection policy has also been developed in

12、 Uganda,which is aligned with its vision 2040,National Development Plan,the National Trade Policy,and other sectoral policies and strategies aimed at minimising market distortions and promoting sustainable development.The policy commits the government to implementing obligations and commitments of t

13、he East African Community(EAC),Common Market for Eastern and Southern Africa(COMESA)and the World Trade Organisation on consumer protection and competition.Further interesting developments in the surveyed countries in this report include that in Zambia,the Competition and Consumer Protection(Amendme

14、nt)Act No.21 of 2023 was passed in late December 2023,amending various provisions of the Competition and Consumer Protection Commission Act No.24 of 2010.These were the most substantial changes since the Act was first enforced in 2010.Importantly,one of the changes concerning the Amendment Act is th

15、at it will apply COMESA Competition Regulations to domestic law.New regulations were also adopted around the definition of core assets in the Amendment Act and the restriction of their movement without the permission of the Competition Authority.Other interesting developments in African countries in

16、clude that Angolas Competition Regulatory Authority is undertaking a Competition Impact Assessment of Public Policies,with sectors such as transport,ports,banking and construction covered so far.In Mauritius,in 2023,the price fixing and importation of Mogas(Motor Gasoline),Gas Oil(Diesel)and Liquefi

17、ed Petroleum Gas were removed from the scope of the Competition(Amendment of Schedule)Regulations 2023;however,there were no subsequent changes to the Act.Also in Mauritius,it was reported on the Competition Commission of Mauritius website in February 2024 that it had launched a market study on the

18、port sector,with the aim of identifying potential barriers to entry and expansion in the provision of the various services provided by public and private operators in the port sector.Baker McKenzie 2 In Kenya,the Competition Authority of Kenya(CAK)published the Administrative Remedies Guidelines in

19、December 2023.The Guidelines outline the CAKs approach to administrative remedies and settlement for specific violations under the Competition Act in relation to restrictive trade practices,merger control,abuse of buyer power and consumer welfare.South African competition authorities had a busy year

20、.In April 2023,the Competition Commission of South Africa(Commission)published its draft Terms of Reference for a market inquiry into the South African steel industry.The inquiry is confined to two levels of the steel value chain,namely,the provision of inputs and raw materials for steel production

21、and primary steel production.In addition,the inquiry focuses on the impact of these levels of the value chain on the domestic downstream steel market.The inquiry will examine whether there are any adverse effects that are present in the steel industry,arising from any feature or combination of featu

22、res that may impede,prevent or distort the competitiveness of the market.-In May 2023,the Department of Trade,Industry and Competition(DTIC)published the Energy Users Block Exemption 2023 after consultation with the Competition Commission.The purpose of these regulations is to exempt a category of a

23、greements or practices by energy users from the application of certain sections of the Competition Act in response to electricity supply constraints in the country.This is to enable collaboration to secure alternative or backup energy supplies,reduce energy costs,promote efficient use and secure inf

24、rastructure,equipment and facilities.-Also in May 2023,the DTIC published the Regulations relating to appeals arising from market inquiries before the Competition Tribunal after consultation with the Commission.Among other things,these regulations aim to make provisions for Competition Tribunal rule

25、s regulating appeals.-In October 2023,the Commission asked for public comments on the draft amended Public Interest Guidelines relating to Merger Control.The draft Guidelines outline the Commissions potential approach and the kind of information it might request while assessing public interest consi

26、derations outlined in the Competition Act.-In January 2024,the Commission published draft Guidelines on the filing of merger notifications for hostile transactions,outlining the Commissions approach to dealing with hostile takeovers.Cooperation is usually crucial in ensuring a timely and complete me

27、rger filing.The Guidelines also provide guidance on the separate merger notification processes to be followed during hostile takeovers.-In February 2024,the Commission published its draft Terms of Reference for a market inquiry into the poultry industry value chain.The inquiry will focus on whether

28、there are any market features in the South African poultry industry that impede,restrict,or distort competition.These developments reveal the intention of competition authorities across the continent to introduce,align,clarify and enforce Competition laws and regulations in the majority of African j

29、urisdictions.This Africa Competition Report is a collaborative effort between Baker McKenzie and our Africa Relationship Firms.It contains a detailed analysis and overview of recent developments in competition law enforcement and competition policy in 32 African jurisdictions.This report details rec

30、ent developments in competition law enforcement and competition policy in each of the highlighted jurisdictions,and provides an overview of regulatory and legislative dynamics and challenges in selected regional markets.Competition in Africa Report 2024 Baker McKenzie 3 Lerisha Naidu Partner,Johanne

31、sburg T+27 11 911 4323 lerisha.naidu Angelo Tzarevski Director Designate,Johannesburg T+27 11 911 4316 angelo.tzarevski Sphesihle Nxumalo Senior Associate,Johannesburg T+27 11 911 4335 sphesihle.nxumalo Jarryd Hartley Associate Designate,Johannesburg T+27 11 911 4335 jarryd.hartley Clara Hansen Asso

32、ciate,Johannesburg T+27 11 911 4335 clara.hansen Baker McKenzie 4 Geographical Overview Status of competition law:Geographical overview Thirty of the 32 surveyed African jurisdictions have national competition law,while only one has no national competition law but is a member of a regional competiti

33、on law body.This is illustrated in the map below:Key Jurisdictions with national competition law Jurisdictions with no national competition law but are part of regional competition body Competition in Africa Report 2024 aker McKenzie 5 Overview No.JURISDICTION DAWN RAIDS FOREIGN DIRECT INVESTMENT RE

34、GIME MERGER FILING GUN-JUMPING LAWS HORIZONTAL/VERTICAL RESTRAINTS 1.Angola No Risk Sector-specific Laws Mandatory&Suspensory Yes No 2.Botswana Low-Medium Risk Sector-specific Laws Mandatory&Suspensory Yes No 3.Cameroon No Risk Yes Mandatory&Suspensory Yes Yes 4.Cape Verde No Risk Sector-specific La

35、ws Mandatory&Suspensory Yes No 5.COMESA No Risk No Mandatory&Non-Suspensory Yes See Chapter for Further Detail 6.Cote dIvoire Medium-Low Risk No Voluntary&Non-Suspensory No Yes 7.Egypt Medium Risk No Mandatory&Suspensory Yes Yes 8.eSwatini No Risk No Mandatory&Suspensory Yes Yes 9.Ethiopia High Risk

36、 Yes Mandatory&Suspensory Yes Yes 10.Gabon No Risk Yes Mandatory&Suspensory Yes Yes 11.Gambia No Risk No See Chapter for Further Detail See Chapter for Further Detail No 12.Ghana No Risk Sector-specific Laws Mandatory&Suspensory Yes Yes Baker McKenzie 6 No.JURISDICTION DAWN RAIDS FOREIGN DIRECT INVE

37、STMENT REGIME MERGER FILING GUN-JUMPING LAWS HORIZONTAL/VERTICAL RESTRAINTS 13.Kenya Medium Risk See Chapter for Further Detail Mandatory&Suspensory Yes Yes 14.Madagascar No Risk Sector-specific Laws Mandatory&Suspensory Yes Yes 15.Malawi Medium Risk No See Chapter for Further Detail No Yes 16.Mali

38、Low Risk No Voluntary&Non-Suspensory Yes Yes 17.Mauritius High Risk No Voluntary&Non-Suspensory No Yes 18.Morocco No Risk No Mandatory&Suspensory Yes Yes 19.Mozambique Low Risk See Chapter for Further Detail Mandatory&Suspensory Yes See Chapter for Further Detail 20.Namibia Low Risk Yes Mandatory&Su

39、spensory Yes Yes 21.Nigeria High Risk Yes Mandatory&Suspensory Yes Yes 22.Rwanda Low Risk Yes Mandatory&Suspensory Yes See Chapter for Further Detail 23.Senegal No Risk See Chapter for Further Detail Voluntary&Non-Suspensory No Yes 24.South Africa Medium-High Risk See Chapter for Further Detail Mand

40、atory&Suspensory Yes Yes 25.Sudan No Risk Yes Mandatory&Suspensory Yes No Competition in Africa Report 2024 aker McKenzie 7 No.JURISDICTION DAWN RAIDS FOREIGN DIRECT INVESTMENT REGIME MERGER FILING GUN-JUMPING LAWS HORIZONTAL/VERTICAL RESTRAINTS 26.Tanzania Low Risk No Voluntary&Non-Suspensory Yes Y

41、es 27.Togo No Risk Sector-specific Laws See Chapter for Further Detail No No 28.Tunisia Low-Medium Risk Yes See Chapter for Further Detail See Chapter for Further Detail Yes 29.Uganda Low Risk No See Chapter for Further Detail No No 30.Zambia Low-Medium Risk No Mandatory&Suspensory Yes Yes 31.Zimbab

42、we Low Risk See Chapter for Further Detail Mandatory&Suspensory Yes Yes Notable developments in key regions JURISDICTION DEVELOPMENT Kenya The Competition Authority of Kenya(CAK)published the Administrative Remedies Guidelines in December 2023.The Guidelines outline the CAKs approach to administrati

43、ve remedies and settlement for specific violations under the Competition Act in relation to restrictive trade practices,merger control,abuse of buyer power and consumer welfare.Mauritius It was reported on Competition Commission of Mauritius website in February 2024 that it had launched a market stu

44、dy on the port sector,with the aim of identifying potential barriers to entry and expansion in the provision of the various services provided by public and private operators in the port sector.South Africa In January 2024,the Competition Commission of South Africa(Commission)published draft Guidelin

45、es on the filing of merger notifications for hostile transactions,outlining the Commissions approach to dealing with hostile takeovers.Cooperation is usually crucial in Baker McKenzie 8 JURISDICTION DEVELOPMENT ensuring a timely and complete merger filing.The Guidelines also provide guidance on the

46、separate merger notification processes to be followed during hostile takeovers.In February 2024,the Commission published its draft Terms of Reference for a market inquiry into the poultry industry value chain.The inquiry will focus on whether there are any market features in South African poultry in

47、dustry which impede,restrict,or distort competition.Uganda In Uganda,the Competition Act,2023 was finally signed into law in February 2024.The Act aims to control anti-competitive behaviour,agreements and any other related practices that adversely impact the Ugandan market.It also seeks to penalise

48、and criminalise anti-competitive practices.A national competition and consumer protection policy has also been developed in Uganda,which is aligned with its vision 2040,National Development Plan,the National Trade Policy,and other sectoral policies and strategies aimed at minimising market distortio

49、ns and promoting sustainable development.The policy commits the government to implementing obligations and commitments of the East African Community(EAC),Common Market for Eastern and Southern Africa(COMESA)and the World Trade Organisation on consumer protection and competition.Zambia In Zambia,the

50、Competition and Consumer Protection(Amendment)Act No.21 of 2023 was passed in late December 2023,amending various provisions of the Competition and Consumer Protection Commission Act No.24 of 2010.These were the most substantial changes since the Act was first enacted in 2010.Importantly,one of the

51、changes concerning the Amendment Act is that it will finally apply COMESA Competition Regulations to domestic law.New regulations were also adopted around the definition of core assets in the Amendment Act and the restriction of their movement without the permission of the competition authority.Comp

52、etition in Africa Report 2024 aker McKenzie 9 Collaboration efforts amongst competition authorities in the region Various African competition authorities have signed Memoranda of Understanding(“MOU”)to foster cooperation in the enforcement of competition policy and law.Specifically,there exists MOU

53、between the national competition authorities of the countries set out below:Angola Portugal.Botswana South Africa Namibia Eswatini South Africa Taiwan Kenya South Africa Malawi Tanzania Zambia Mauritius Seychelles South Africa Namibia South Africa Botswana Nigeria United States Egypt South Africa Ma

54、uritius The Russian Federation Brazil Namibia Eswatini Kenya Barbados Botswana Egypt Zambia Malawi Zimbabwe South Africa Zimbabwe Zambia Regional competition law bodies and instruments Over the years,regional competition agreements(RCAs)have been adopted in Africa in terms of which regional competit

55、ion bodies have been established to enforce competition provisions.These Baker McKenzie 10 RCAs generally offer deeper levels of integration and a higher degree of co-operation in competition enforcement.The table below reflects regional bodies and instruments and the national authorities membership

56、s:Jurisdiction Regional Competition Bodies/Instruments COMESA1 EAC2 WAEMU3 SADC4 AfCFTA5 ACF6 ECOWAS7 CEMAC8 Angola Botswana Cameroon Cape Verde Cote dIvoire Egypt Eswatini Ethiopia 1 Common Market for Eastern and Southern Africa(COMESA):the authority responsible for the implementation of the region

57、al competition provisions in the common market for Eastern and Southern Africa.It conducts investigations of cross-border anti-competitive cases and reviews merger transactions,co-operating where necessary with the National Competition Authorities of the Member States.2 East African Community(EAC):t

58、he EAC Competition Act gives the EAC Competition Authority exclusive original jurisdiction in the determination of violations of the EAC Competition Act,i.e.anti-competitive behaviour that has cross-border effect.3 West African Economic and Monetary Union(WAEMU):The WAEMU Competition Commission has

59、exclusive jurisdiction over competition provisions in the union.4 Southern African Development Community(SADC):is an inter-governmental organisation,which aims to further regional socio-economic cooperation and integration as well as political and security cooperation among 16 countries in southern

60、Africa.SADC members signed and approved the Declaration on Competition and Consumer Policies in 2009 and cooperate on competition matters under various SADC committees/working groups.5 African Continental Free Trade Area(AfCFTA):The AfCFTA has also been pivotal in shaping a pan-African competition p

61、olicy,aligning with the trends of fostering a consistent approach to public interest and further emphasising the growing collaboration amongst competition enforcers.The adoption of the protocol on competition policy by the African Union Assembly of Heads of State and Government in February 2023 unde

62、rlined this collective effort.6 African Competition Forum(ACF):the ACF is an informal network of African national and multinational competition authorities.The principal objective of the ACF is to promote the adoption of competition principles in the implementation of national and regional economic

63、policies of African countries.7 Economic Community of West African States(ECOWAS):is a regional political and economic of fifteen countries located in West Africa.The ECOWAS Regional Competition Authority ismade responsible for enforcement of the regional competition provisions.It was established in

64、 2008 but only launched on 12 July 2018(hosted by Gambia).On 27 January 2024,Mali,Burkina Faso and Niger announced their immediate withdrawal from ECOWAS.8 Central African Economic and Monetary Community(CEMAC):the CEMAC Executive Secretariat is responsible for the implementation of the regional com

65、petition provisions in the Central African Economic and Monetary Community.Competition in Africa Report 2024 aker McKenzie 11 Jurisdiction Regional Competition Bodies/Instruments COMESA1 EAC2 WAEMU3 SADC4 AfCFTA5 ACF6 ECOWAS7 CEMAC8 Gabon Ghana Kenya Madagascar Malawi Mali Mauritius Morocco Mozambiq

66、ue Namibia Nigeria Rwanda Senegal South Africa Sudan Tanzania Togo Tunisia Uganda Zambia Zimbabwe Title aker McKenzie 13 Baker McKenzie 14 Angola General The legal framework on competition includes the Competition Act,approved by Law No.5/18 of 10 May 2018,and the Competition Regulation,approved by

67、Presidential Decree No.240/18,of 12 October 2018.These legislative developments have been strengthened by the establishment of the Angolan Competition Regulatory Authority(“CRA”),which became operational following Presidential Decree No.313/18 of 21 December 2018,as amended by Presidential Decree No

68、.110/19,of 16 April 2019,which approved bylaws of the CRA and the presidential appointment of its board of directors(“Board”).The CRA has published a number of Secondary Regulations on various matters,of which we would like to emphasise No.7/20,setting forth the leniency regime.Likewise,the CRA has

69、been publishing Guidelines regarding its enforcement activity,such as the Guidelines on the adoption of commitments in merger control procedures and the Guidelines on the method of setting fines.1.To the extent that there are any market inquiry provisions in your jurisdiction,has the competition aut

70、hority initiated or are there any plans to initiate any market inquiries in relation to any sector/industry?If so,kindly indicate these sectors/industries.The CRA has conducted market inquiries in relation to the following sectors,namely(i)civil aviation;(ii)telecommunications;and(iii)electricity,in

71、 2020 and 2021.2.Has the competition authority publicly expressed concern in relation to any industry/sector?If so,kindly indicate these sectors/industries.The CRA has issued competition and/or pricing recommendations with regard to the following sectors namely(i)payment services;(ii)civil aviation;

72、and(iii)electricity.Additionally,CRA has recently issued a Guide regarding Competition and Public Procurement,jointly prepared with the National Service of Public Procurement and a Guide on competition law for business associations.The CRA is also undertaking a Competition Impact Assessment of Publi

73、c Policies,which thus far has covered a number of sectors such as transport,ports,banking and construction.3.Has the competition authority identified any specific sectors as strategic or key sectors for purposes of competition law enforcement?If so,kindly indicate these sectors/industries.In order t

74、o ensure greater speed and efficiency in the investigation processes of anti-competitive conduct,via complaints,the CRA launched the Complaints Portal on Restrictive Competition Practices.The purpose of this portal is to facilitate the provision of information on all types of acts,the effects of whi

75、ch,are embodied in restrictive practices of competition,namely(i)abuse of dominant position;(ii)abuse of economic dependence;(iii)horizontal agreements restricting competition;(iv)vertical agreements restricting competition;(v)decisions by associations of companies harmful to competition;and(vi)tran

76、sactions or mergers of companies not notified.These restrictive practices apply equally to all sectors and industries.Thus far,no specific sectors have been identified as strategic or key for purposes of competition law enforcement.Competition in Africa Report 2024 Baker McKenzie 15 4.Are dawn raids

77、 by the competition authority a high risk in your jurisdiction?Please provide as much information as possible about dawn raids conducted by the competition authority.There have been no instances in which the CRA has undertaken a dawn raid.That being said,the CRA possesses the authority that is typic

78、al of competition watchdogs,including the authority to carry out unannounced inspections.5.Has the competition authority been proactive in addressing pricing practices of firms through,for example,reaching settlement agreements with firms to cap prices of products/services since?If so,please provide

79、 details.No.6.Has the competition authority adopted any new regulations or measures that will apply to firms that are active in the digital market space?If so,please provide details.No.7.Has the competition authority identified industries/markets/sectors that it consider to be concentrated?If so,ple

80、ase provide details.No.8.Please indicate whether there is a foreign direct investment review regime in your jurisdiction in relation to mergers involving foreign buyers/acquirers and kindly indicate the relevant review/regulatory body?If there is,please indicate whether there have been any foreign d

81、irect investment notifications to date.If there is no foreign direct investment regime,kindly indicate whether there are any plans announced to introduce it.Mergers involving foreign buyers or acquirers,which entail a concentration relevant from a competition perspective,are addressed under the cont

82、rol of concentrations provisions set forth in the Competition Act.Other than that,foreign direct investments are governed by Private Investment Law(Law No.10/21,of 22 April 2021)(“PIL”)and the Regulations thereto,as approved by Presidential Decree no.250/18,of 30 October 2018.9.If there is a foreign

83、 direct investment regime in your jurisdiction,please indicate whether it applies to all sectors or specific sectors(such as sectors considered to relate to national security).The PIL applies to all sectors but also provides certain benefits depending on the sectors in which the investment is made.N

84、otably,priority sectors include education,technical and professional training,scientific research and innovation,agriculture,food and agro-industry,amongst others.10.Are there other consequences for companies that contravene the competition legislation in your jurisdiction?For example,blacklisting f

85、rom participating in public tenders for a limited period,etc.?Yes.Other than the imposition of fines which may vary from 1%to 5%or 1%to 10%of the annual turnover,depending on the type of infringement,other ancillary penalties may apply such as(i)blacklisting from participating in public tenders for

86、a period of up to three years,(ii)publication of the sanction applied in the most circulated newspaper and(iii)winding-up of the Baker McKenzie 16 company,sale of the shareholding control/sale of the assets,partial suspension/shut-down of the activities.11.In what circumstances(if any)can a penalty

87、be imposed on a parent company/group company?What happens if such parent/group company is incorporated outside your jurisdiction and does not have a physical presence in your jurisdiction?Provided that a parent company/group company-irrespective of having a physical presence in Angola or not-is invo

88、lved in the infringement,such parent company/group company may be subject to an imposition of a penalty by the CRA.12.Does your competition legislation provide for the imposition of civil liability on directors/company officers/managers/employees of a company in circumstances where a company has con

89、travened the legislation?If so,kindly provide examples of cases where such liability has been imposed.No.Merger Control Developments 13.What is the general likelihood of a transaction being prohibited by the competition authority?Please also provide examples on past prohibitions and grounds thereof.

90、Thus far the Competition Regulatory Authority has not prohibited any transaction.Out of approximately 50 decisions,only two were subject to commitments.14.Have any transactions been prohibited by the competition authority in your jurisdiction since January 2022?If so,kindly indicate these cases and

91、reasons for prohibition.According to the information disclosed on the CRA website,no notified transactions have been prohibited since January 2022.15.Are there official proposals to amend merger filing fees and/or monetary thresholds or have such amendments been recently effected?The CRA has been fu

92、nded through the State Budget,due to it lacking own revenues.This situation has been modified and merger filing fees have been set through Executive Decree No.32/21,of 1 February 2021,issued by the Finance Ministry,according to which the following fees are due:(i)AKZ 2,418,944.15(approx.USD 5,822)on

93、 notified transactions with combined revenue above AKZ 450 million(approx.USD 1,083,114);and(ii)AKZ 3,627,916.96(approx.USD 8,732)on notified transactions with combined revenue above AKZ 3.5 billion(approx.USD 8,424,224).For notified transactions with combined revenue below AKZ 450 million(approx.US

94、D 1,083,114)no filing fees have been set.16.Is the submission of a merger notification suspensory and mandatory in your jurisdiction?If so,has the authority brought any cases against entities accused of gun-jumping and/or prior implementation of a notifiable transaction?If so,kindly provide details.

95、Yes.The submission of a merger notification is mandatory and suspensory.A merger cannot be completed until clearance is received from the CRA.There is no record of any cases against entities accused of gun-jumping and/or prior implementation of a notifiable transaction.Competition in Africa Report 2

96、024 Baker McKenzie 17 17.Is the submission of a merger notification non-suspensory and voluntary in your jurisdiction?If so,has the authority brought any cases against entities for failure to notify a transaction post-completion within the stipulated time period?If so,kindly provide details,includin

97、g details of instances where the authority has specifically requested notification of mergers.No.Merger notification is mandatory if the notification thresholds are met.Parties to the transaction are subject to a standstill obligation until a clearance decision is issued by the CRA.18.Please describ

98、e any cases in which the competition authority fined any entity for failing to comply with merger conditions.We are unaware of any such cases.19.Could a transaction be mandatorily notifiable in your jurisdiction if the target firm has no physical presence in the country?For example,could a filing be

99、 triggered if the target firm:(a)only makes sales into the country without having a physical presence;or(b)does not derive any turnover from your jurisdiction.Practically,does the competition authority insist on such transactions being notified?Provided that the notification thresholds are met,a tra

100、nsaction is notifiable to the Competition Regulatory Authority irrespective of the target having a physical presence in Angola.20.Has the authority approved any mergers subject to novel or otherwise noteworthy conditions?The CRA approved several mergers,however,no mergers were approved subject to no

101、vel or otherwise noteworthy conditions.21.Please indicate whether the competition authority has required notification of internal restructurings(that do not involve a change in ultimate control)and,if so,on what basis.No.22.Please indicate whether an obligation to notify could be triggered as a resu

102、lt of a change in direct control over an entity through the interposition of a new entity within the group,albeit that the restructure does not result in a change in ultimate control.Internal restructurings are not caught.Purely internal transactions,where ultimate control remains within a group of

103、companies,are not caught by company concentration provisions.23.Please describe cases of mergers that have been approved subject to public interest grounds and kindly describe the nature of these public interest grounds.Reported mergers,subject to prior clearance and which have been made public,have

104、 been approved on the basis that the mergers do not entail an impediment to effective competition.24.Please describe cases where the competition authority has prohibited a merger transaction based on public interest grounds alone.As mentioned above,the CRA has not hitherto prohibited any merger tran

105、sactions.Baker McKenzie 18 25.Describe the circumstances in which greenfield/joint ventures mergers are caught under the merger review regime,and kindly provide instances of such mergers that have been notified to and considered by the competition authority.The establishment of a joint venture is ca

106、ught by notification requirements.Notification may be required for the establishment of a new joint venture even if only the parents generate revenue in the jurisdiction but not the joint venture itself.The concept of“concentration”covers the creation of a full-function joint venture on a lasting ba

107、sis.The“undertakings concerned”for the establishment of a joint venture(i.e.,the relevant parties for meeting the revenue thresholds),are all undertakings that can exercise decisive influence over the joint venture.Typically,these parties include majority shareholders and any minority shareholders w

108、ith the ability to block strategic decisions,thus exercising control over the joint venture.In the establishment of a new joint venture,the joint venture itself is not considered to be an“undertaking concerned”.In a change of control over an existing joint venture,the joint venture itself is also co

109、nsidered to be an“undertaking concerned”.This is relevant as it sets forth how the thresholds are applied in the case of a joint venture.Alternately,where the creation of the joint venture has the object or effect of coordinating the competitive behaviour of undertakings that remain independent,such

110、 coordination shall be assessed under the rules applicable to prohibited agreements and practices.26.What is the maximum approval period of a merger that has been notified in your jurisdiction?To the best of our knowledge,the longest merger control procedure had a duration of seven months and the sh

111、ortest one took around one month to be completed.27.In practice,on average how long does the authority in your jurisdiction take to approve:a)a non-complex transaction;and b)a complex transaction:Under the Competition Act,the CRA has a 120-day term to decide on transactions filed.If the referred tim

112、e limit for the CRA to make a decision lapses without any decision being issued,the transaction will be considered to have been tacitly approved by the CRA.Where an in-depth investigation is initiated by the CRA(to investigate whether the merger is considered likely to create or reinforce a dominant

113、 position in Angola,resulting in significant impediments to competition in the market or in a substantial part of it),a final decision must be issued within 180 days from commencement of the investigation.On average the CRA has taken three months to issue a decision.Only with regard to a more comple

114、x transaction,which involved the parties undertaking certain remedies and commitments for it to obtain clearance,the CRA took close to seven months to reach a decision.28.Kindly indicate whether the competition authority enjoys the power to“stop the clock”for the review of a merger and under what ci

115、rcumstances can this happen.If so,please describe cases where the authority has stopped the clock.The CRA has the ability to“stop the clock”after a review has started.The submission of commitments by the parties“stops the clock”for the period determined by the CRA.During a review,the CRA may ask for

116、 further information from the parties,assesses commitments(and in this case,the deadline for a decision is suspended)and conduct a hearing of the notifying Competition in Africa Report 2024 Baker McKenzie 19 parties and third parties who have expressed opposition to the transaction,before issuing a

117、final decision.We have no knowledge of past decisions in this respect.29.Please indicate whether,legally or in practice,your competition authority allows for“Carve out”/“hold separate”arrangements in the case of global transactions(this means that where clearance is not obtained in your jurisdiction

118、 by a specific date,the acquirer would opt not to take over the company in your jurisdiction but will implement the transaction in countries where approval has been obtained.The target in your jurisdiction may be left behind with the sellers for future disposal separately,hence no change in control

119、in your jurisdiction would take place in light of the hold separate arrangement).If so,kindly describe cases where this has happened.There is no information on record at this stage.The merger regime is suspensory,meaning that if the transaction is caught by the notification requirements,it may not b

120、e implemented before the CRA has issued clearance.National clearance obligations typically suspend the transaction at an international level,i.e.,the transaction may not be implemented globally until all required national approvals have been obtained.That being said,it is it possible to implement a

121、transaction outside Angola prior to receiving clearance provided the CRA grants an exemption,upon submission of a reasoned request by the company or companies,derogating the stand-still obligation.Prohibited Practices 30.Please provide information in relation to any noteworthy penalties that were im

122、posed on any entities engaged in prohibited practices such as cartel conduct,abuse of dominance,etc.There is no record of penalties having been imposed on any entities as a result of being engaged in prohibited practices.31.Has the authority brought any cases against parties in a vertical relationsh

123、ip for infringing the competition legislation?If so,please provide details.According to information on its website,the CRA opened one investigation in 2019,on alleged anticompetitive practices.No further information has since been provided,including whether the investigation is concerned with vertic

124、al relationships.32.Please explain how exclusivity clauses and non-compete restraints are treated in your jurisdiction.Have there been any prosecution against entities for implementing exclusivity clauses or non-compete restraints?If so,please provide details.Exclusivity clauses and non-compete rest

125、raints are not expressly provided for in the Competition Act and will therefore be assessed on a case-by-case basis.Exclusivity clauses and non-compete restraints may be deemed an infringement of competition rules if,in the specific case,they are likely to constitute practices which restrict competi

126、tion,notably by restraining market entry.To the best of our knowledge,no prosecution has been launched against entities for implementing these types of clauses.33.Has the authority launched and publicised any investigations recently against any entities for engaging in prohibited practices?If so,ple

127、ase provide details.To the best of our knowledge,no investigation has been launched and/or publicised since January 2022.Baker McKenzie 20 34.Does the competition legislation contain provisions on the abuse of buyer power?If so,has the authority brought any cases against entities accused of abusing

128、buyer power?If so,please provide details.The Competition Act does not contain specific provisions on the abuse of buyer power;however,the conduct could be caught by the prohibitions of abuse of a dominant position and/or abuse of economic dependence.In the absence of a dominant position or economic

129、dependence,the abuse of buyer power does not fall within the scope of the competition legislation.35.Is cartel conduct/anti-competitive conduct criminalised in your jurisdiction?If so,have any criminal charges been brought/convictions made against any persons and/or entities for engaging in any anti

130、-competitive conduct?If so,please provide details.Cartel conduct and/or anti-competitive conduct is not criminalised,but is rather defined as an administrative offence that is subject to fines.However,criminal liability may arise where the relevant anti-competitive conduct involves actions that may

131、be deemed a crime,such as fraud,embezzlement,and abusive conduct,for example.Accordingly,even though the legislation does not expressly provide for specific types of crimes related to anti-competitive conduct,the actual conduct or practice may entail certain actions that are criminalised.Regional Bo

132、dies/Cooperation 36.Please confirm whether your jurisdiction is a member of any regional bodies that have a competition law regime(e.g.,COMESA,CEMAC,EAC,etc.).Angola is a member of the Southern African Development Community(“SADC”),whose members signed and approved the Declaration on Competition and

133、 Consumer Policies in 2009(“Declaration”).Under the Declaration,SADC members undertook to set up a system for effective cooperation in the application of the competition and consumer protection laws of each member state.The Competition and Consumer Policy and Law Committee(“CCOPOLC”)was established

134、under the Declaration and is tasked with fostering cooperation and dialogue among competition authorities and encouraging the alignment of legislation.The CCOPOLC facilitates cooperation and consultation in competition-related matters but does not operate as a regional body aimed at controlling anti

135、-competitive practices within the SADC area.37.Please confirm whether your jurisdiction has signed any Memorandum of Understanding with any other jurisdiction.If so,kindly provide details.The CRA and its Portuguese counterpart,the Competition Authority(“AdC”),signed a Memorandum of Understanding,on

136、21 December 2020.According to a press release from the CRA,the Memorandum of Understanding formalises the already solid partnership between the two entities.In this document,both Authorities expressly reiterate their mutual interest in establishing a strong and stable cooperation relationship,based

137、on the sharing of relevant information of a non-confidential nature,exchange of ideas,transmission of technical knowledge and exchange of experiences,in the various fields of competition promotion and defence policy.The bilateral cooperation established between the AdC and the CRA is essentially bas

138、ed on six pillars,namely(i)development and promotion of joint studies and research on competition;(ii)establishment of technical and institutional assistance platforms in all areas inherent to the promotion and defence of competition;(iii)promotion of staff training and exchange initiatives;(iv)shar

139、ing of experiences in the implementation of good practices in the field of defence and promotion of competition;(v)exchange of publications,Competition in Africa Report 2024 Baker McKenzie 21 studies,or reports,as well as non-confidential information about legislative developments and processes;and(

140、vi)promotion of joint competition promotion and defence events.38.If a merger is notifiable in your jurisdiction and the thresholds for regional notification are also triggered,are parties required to notify both domestically and regionally?Mergers are notifiable domestically,where they meet the rel

141、evant thresholds for notification,regardless of whether the merger is also notified at a regional level.39.Please describe cases where a regional body has engaged with your local competition authority in relation to enforcement of competition law cases or merger reviews.Not applicable.40.Please desc

142、ribe any announced cooperation between your local competition authority and regional body(ies)in relation to new or ongoing investigations.Not applicable.In collaboration with:Miranda&Associados Rita Correia Partner T+351 21784800 rita.correia Luis M.S.Olivera Partner T+351 217814800 luis.oliveira M

143、iguel Marques de Carvalho Partner T+351 217814800 miguel.carvalho Baker McKenzie 23 Baker McKenzie 24 Botswana General 1.Please describe any new amendments or guidelines relating to the competition legislation in your jurisdiction that have been proposed or enacted since the information below was pr

144、ovided.The Competition Act,2018(“Competition Act”)came into force on 2 December 2019.The Competition Act repeals the Competition Act,2009 and introduces the following significant changes:a)With effect from 2 December 2019,the competition authority has been renamed the Competition and Consumer Author

145、ity Botswana(“CCAB”);b)The Competition and Consumer Board was established as the governing body of the CCAB,responsible for its affairs and policy direction;c)The Competition and Consumer Tribunal was established to adjudicate over breaches of the Competition Act,or any appeal brought in terms of th

146、e provisions of the Competition Act;d)Criminal sanctions now apply to any officer or director of an enterprise who contravenes the horizontal restrictive practice provisions of the Competition Act.An officer or director may be liable for a fine of up to BWP 100,000(approx.USD 7.618.66)or imprisonmen

147、t for up to five years,or both;e)Personal liability may be imputed to any director or officer contravening the resale price maintenance provisions of the Competition Act.A fine of up to BWP 50 000(approx.USD 3,809.93)may be imposed;f)The Competition Act expands the general prohibition against abuse

148、of dominance,by introducing specific conduct that amounts to abuse,including:predatory conduct,tying and bundling of products,loyalty rebates,margin squeeze,refusal to supply or deal with other enterprises(including a refusal to grant access to an essential facility),requiring or inducing any custom

149、er to not deal with other competitors,discriminating in terms of price or other trading conditions and exclusive dealing;and g)Introduction of a financial penalty for failing to notify a merger or for prior implementation of a merger,calculated as a fine not exceeding 10%of the consideration or the

150、combined turnover of the parties involved in the merger,whichever is greater.In line with the amendments to the Competition Act,the Merger Assessment Regulations,2013,have been updated.In May 2022,the CCBA signed a memorandum of understanding with the Botswana National Productivity Centre.This was t

151、o enhance cooperation in the various productivity sectors.On 12 April 2023,the CCAB signed a memorandum of understanding under a partnership with the Botswana National Library Service to facilitate consumer access to CCABs services in Botswana.Competition in Africa Report 2024 Baker McKenzie 25 2.To

152、 the extent that there are any market inquiry provisions in your jurisdiction,has the competition authority initiated or are there any plans to initiate any market inquiries in relation to any sector/industry?If so,kindly indicate these sectors/industries.Where the CCAB has reasonable grounds to sus

153、pect that,in light of observed price rigidities or other circumstances,a restriction or distortion of competition may be occurring within a particular sector of the economy or within a particular type of agreement occurring across various sectors,the CCAB may initiate a market inquiry.During the 201

154、8/19 financial year,the CCAB undertook the following market inquiries:a)A market inquiry in the liquefied petroleum gas market,in collaboration with other agencies in the SADC region and through the African Competition Forum.The findings of the study indicated that there is extreme market concentrat

155、ion in the upstream market,with high profit margins;and b)An inquiry is ongoing into the pharmaceutical sector in Botswana.The objectives of the inquiry are to(i)identify competition issues that need to be addressed in Botswanas pharmaceutical sector;(ii)understand the landscape of the pharmaceutica

156、ls sector in Botswana;(iii)understand the relationship between stakeholders within the pharmaceuticals sector subject to the value chain;and(iv)assess potential barriers to entry that may prevail along the pharmaceuticals supply value chain in Botswana.During the 2019/20 financial year,the CCAB has

157、carried out market inquiries related to the following sectors:-a)Pharmaceutical continuing from the previous financial year,under the ambit of the African Competition Forum,the CCAB successfully conducted a market inquiry om the pharmaceutical sector to determine any competition issues.The overall f

158、indings revealed the existence and prevalence of anti-competitive behaviours in the market.During the 2020/21 financial year,the CCAB has carried out market inquiries(mainly cartel conduct)related to the following sectors:a)Abattoirs this inquiry concerned a“refusal to deal”complaint by a vertically

159、 integrated abattoir;b)Construction(bidding market)this inquiry followed an allegation of bid rigging in public procurement tenders;c)Waste Management(bidding market)this inquiry followed an allegation of bid rigging in public procurement tenders;d)Government Supplies(bidding market)this inquiry fol

160、lowed an allegation of bid rigging in public procurement tenders;and e)Animal Feed this inquiry involved an investigation of alleged cartel conduct in relation to poultry and pig feed supplies.During the 2021/22 financial year,the CCAB has carried out market inquiries related to the following sector

161、s:a)Fast Moving Consumer Goods this inquiry commenced in 2015-2017 where one of the findings indicated a possible abuse of market power by different retailers/wholesalers use of in-house branded products to stifle growth of family brands.The case is still under investigation and will be carried forw

162、ard to the next financial year;Baker McKenzie 26 b)Construction sector(bidding market);c)Waste management sector(bidding market);d)Financial sector;e)Government supplies sector(bidding market);and f)Animal feed sector.3.Has the competition authority publicly expressed concern in relation to any indu

163、stry/sector?If so,kindly indicate these sectors/industries.The CCAB has expressed concern in relation to the following sectors:Trade Associations At the launch of the LPG Association on 4 March 2022,the CCAB noted that trade associations can raise competition concerns as they may facilitate coordina

164、tion on prices,establish barriers to entry or undertake other activities that diminish competition.The CCAB further noted with concern that a study carried out by the CCAB in 2018 revealed a concentration ration of 94%by the top three firms in the LPG sector,which is significantly higher than the 70

165、%international threshold for high market concentration.With the market highly concentrated and dominant firms being integrated along the supply chain,this may facilitate infringements such as margin squeeze,refusal to deal,excessive pricing and price fixing.Pyramid schemes The CCAB has opened an inv

166、estigation in a number of cases including WhatsApp Gifting,Mufhiwa and others.For effective implementation of the Competition Act in relation to the said deceptive offences,the CCAB is collaborating with the Botswana Police Service,which is the entity responsible for criminal investigation and possi

167、ble referral to the Directorate of Public Prosecutions.4.Has the competition authority identified any specific sectors as strategic or key sectors for purposes of competition law enforcement?If so,kindly indicate these sectors/industries.The CCAB,working together with the Organisation for Economic C

168、ooperation and Development(“OECD”),is currently undertaking an impact assessment analysis of the legislative framework in the agricultural grains sector to determine the effectiveness of the legislative framework focusing on pricing and import restrictions.The CCAB is conducting education initiative

169、s in the sector,including with regulators,as it is unclear if the existing legislation addresses competition concerns in this sector.5.Are dawn raids by the competition authority a high risk in your jurisdiction?Please provide as much information as possible about dawn raids conducted by the competi

170、tion authority.No,dawn raids are a low to medium risk in Botswana.During the preceding year,only one dawn raid was undertaken in the poultry and feeds sector,following allegations of cartel conduct.The investigation is still ongoing.Competition in Africa Report 2024 Baker McKenzie 27 6.Has the compe

171、tition authority been proactive in addressing pricing practices of firms through,for example,reaching settlement agreements with firms to cap prices of products/services since?If so,please provide details.Yes.In March 2021,the CCAB entered into a settlement agreement with Gaborone Container Terminal

172、 Proprietary Limited(“GABCON”)in an abuse of dominance case in the container haulage market.The CCAB had alleged that GABCON had engaged in an abuse of dominance through refusal to deal and excessive pricing.While the matter was before the Tribunal,the parties entered into a settlement agreement in

173、terms of which GABCON admitted to have abused its dominance in the container haulage market through refusal to deal and to desist from the said conduct.7.Has the competition authority adopted any new regulations or measures that will apply to firms that are active in the digital market space?If so,p

174、lease provide details.No.8.Has the competition authority identified industries/markets/sectors that it considers to be concentrated?If so,please provide details.No.9.Please indicate whether there is a foreign direct investment review regime in your jurisdiction in relation to mergers involving forei

175、gn buyers/acquirers and kindly indicate the relevant review/regulatory body?If there is,please indicate whether there have been any foreign direct investment notifications to date.If there is no foreign direct investment regime,kindly indicate whether there are any plans announced to introduce it.No

176、.The Competition Act applies to“all economic activity within,or having an effect within,Botswana”.Accordingly,foreign-to-foreign mergers are notifiable if the merger involves economic activity within or having an effect within Botswana and the prescribed thresholds are met.10.If there is a foreign d

177、irect investment regime in your jurisdiction,please indicate whether it applies to all sectors or specific sectors(such as sectors considered to relate to national security).Not applicable.Any officer or director of an enterprise who contravenes the horizontal restrictive practice provisions of the

178、Competition Act may be liable for a fine of up to BWP 100,000(approx.USD 7,618.66).Additionally,personal liability may be imputed to any director or officer contravening the resale price maintenance provisions of the Competition Act up to BWP 50 000(approx.USD 3,809.93).Merger Control Developments 1

179、1.What is the general likelihood of a transaction being prohibited by the competition authority?Please also provide examples on past prohibitions and grounds thereof.Where the CCAB establishes a substantial lessening of competition in a horizontal merger or where the merger involves dominant parties

180、 or shall result in potential monopoly creation the Authority is likely to prohibit the merger.In 2012,the CCAB prohibited the merger of G4S(Botswana)Limited and FMG(Shield Security)for inter alia,the following reasons:-Baker McKenzie 28 the aggregate market shares of the merged entity in the securi

181、ty services market and,the alarm and response market,as measured by the market share at 33%and 53%,respectively,are significantly above the dominance threshold of 25%;G4S is considered to have substantial market power in view of the market structure for security services in Botswana;and the proposed

182、 transaction is likely to result in the removal of a“small but significant”competitor particularly in the alarm and response services market of Botswana and enhance G4Ss continued dominance of the relevant market.12.Have any transactions been prohibited by the competition authority in your jurisdict

183、ion since January 2022?If so,kindly indicate these cases and reasons for prohibition.No.13.Are there official proposals to amend merger filing fees and/or monetary thresholds or have such amendments been recently effected?No.14.Is the submission of a merger notification suspensory and mandatory in y

184、our jurisdiction?If so,has the authority brought any cases against entities accused of gun-jumping and/or prior implementation of a notifiable transaction?If so,kindly provide details.Yes.Merger notification is mandatory and suspensory.15.Is the submission of a merger notification non-suspensory and

185、 voluntary in your jurisdiction?If so,has the authority brought any cases against entities for failure to notify a transaction post-completion within the stipulated time period?If so,kindly provide details,including details of instances where the authority has specifically requested notification of

186、mergers.No.Please refer to the response above.16.Please describe any cases in which the competition authority fined any entity for failing to comply with merger conditions.Not applicable.17.Could a transaction be mandatorily notifiable in your jurisdiction if the target firm has no physical presence

187、 in the country?For example,could a filing be triggered if the target firm:(a)only makes sales into the country without having a physical presence;or(b)does not derive any turnover from your jurisdiction.Practically,does the competition authority insists on such transactions being notified?a)Yes,if

188、the target enterprise does not have physical presence in Botswana but derives income in,into or from Botswana in excess of the prescribed merger notification threshold then such merger would be notifiable.b)No.Practically,the CCAB insists on notification where the entity,whether having presence in B

189、otswana or not generates income,in,into or from Botswana.Competition in Africa Report 2024 Baker McKenzie 29 18.Has the authority approved any mergers subject to novel or otherwise noteworthy conditions?Yes.In the proposed acquisition of 100%of the issued share capital in Kruger Agencies Technology

190、Proprietary Limited(“KAT”)by Mr Jagdish Shah,the CCAB approved the acquisition subject to,inter alia,the following conditions:the director of KAT shall be employed as a manager in the company for at least one year with the intention to train a citizen to undertake the role within 18 months;and for a

191、ll positions held by expatriate staff in KAT,the acquirer shall appoint citizen understudies who shall take over the role.19.Please indicate whether the competition authority has required notification of internal restructurings(that do not involve a change in ultimate control)and,if so,on what basis

192、.Yes.The CCAB requires notification of internal restructurings.The proposed acquisition of control over Puma Energy Holdings Proprietary Limited(“Puma Energy”)by Trafigura Proprietary Limited,a wholly owned subsidiary of Trafigura Group Proprietary Limited(“Trafigura”)involved an internal restructur

193、ing,in terms of which,Trafigura,an existing shareholder,acquired control of Puma Energy.Both parties to the merger are subsidiaries of the Trafigura Group.20.Please indicate whether an obligation to notify could be triggered as a result of a change in direct control over an entity through the interp

194、osition of a new entity within the group,albeit that the restructure does not result in a change in ultimate control.Yes.21.Please describe cases of mergers that have been approved subject to public interest grounds and kindly describe the nature of these public interest grounds.Public interest grou

195、nds have been applied mainly in relation to employment,and in particular,a prohibition on merger specific retrenchments.The following mergers included a prohibition of retrenchment condition:a)The proposed acquisition of 100%issued share capital in Aon Holdings Proprietary Limited by Min Holdings Pr

196、oprietary Limited.The CCAB determined that the proposed merger may have a negative impact on public interest matters in Botswana,as a result,it directed that there shall be no merger specific retrenchments.b)The proposed acquisition of the 100%shares in Blue Pebbles Proprietary Limited by Zexmon Inv

197、estments Proprietary Limited.The merger was approved with the condition that there will be no merger specific retrenchments for a period of three years from the date of implementation.c)The proposed lease of Phakalane Hotel and Convention Centre by Cresta Marakanelo Limited from Nectar Holdings Prop

198、rietary Limited and Real Time Services Proprietary Limited,and the acquisition of certain sale assets by Cresta Marakanelo Limited from Nectar Holdings Proprietary Limited and Phakalane Estates Proprietary Limited.This acquisition was approved subject to the condition that Cresta Marakanelo Limited

199、will prioritise employees of Phakalane Estates Proprietary Limited,who were working at the Phakalane Hotel and Convention Centre,when recruiting for its new business situated at the Phakalane Hotel and Convention Centre.Baker McKenzie 30 d)The proposed acquisition of 100%of the issued share capital

200、of Barloworld Motor Botswana Proprietary Limited by NMI Durban South Africa Motors.The merger was approved subject to the condition that there shall be no merger specific retrenchments or redundancies that may affect the employees of the merged enterprises.e)The proposed acquisition of 60%issued sha

201、res of Tongaat Hulett Limited by Magister Investments Limited.The merger was approved subject to the conditions such as the merged entity using its endeavours to ensure that the packaging business of THB continues to source packaging plastic locally and other services in Botswana and no merger speci

202、fic retrenchments or redundancies that may affect the employees of the merged enterprises.f)The proposed acquisition of a further interest in Namibia Breweries Limited and the in-scope assets of Distell Group Holdings Limited by Heineken B.V through Sunside Acquisitions Limited(“NEWCO”).The merger w

203、as approved subject to conditions aimed at empowering a citizen-owned distribution.g)The proposed acquisition of sale assets of Hungry Lion Botswana Propriety Limited by Queens Proprietary Limited in one indivisible transaction as a going concern.The merger was approved subject to conditions such as

204、 paying full terminal benefits to employees who decide not to transfer to the acquiring enterprise and no specific merger retrenchments or redundancies for a period of three years.h)The proposed acquisition of 100%shareholding in Altron Botswana(Pty)Ltd by Tano Digital Solutions Botswana(Pty)Ltd.The

205、 merger was approved subject to the condition that there will be no merger specific retrenchments or redundancies.i)The proposed acquisition of 100%of the total issued share capital in Olifanten S.A.R.L together with its Botswana Subsidiary Abu Private(Pty)Ltd by Saphire Holdings Limited.The merger

206、was approved subject to the condition of enhancing Citizen Empowerment by disposal in(aggregate)a minimum of 30%of the shares Abu Private Reserve(Pty)Ltd(as the concession operator)to citizens.22.Please describe cases where the competition authority has prohibited a merger transaction based on publi

207、c interest grounds alone.None.23.Describe the circumstances in which greenfield/joint ventures mergers are caught under the merger review regime,and kindly provide instances of such mergers that have been notified to and considered by the competition authority.The Competition Act does not specifical

208、ly refer to joint ventures.That being said,joint ventures that are classified as mergers will be notifiable,if they meet the thresholds for mandatory notification.24.What is the maximum approval period of a merger that has been notified in your jurisdiction?90 working days.Competition in Africa Repo

209、rt 2024 Baker McKenzie 31 25.In practice,on average how long does the authority in your jurisdiction take to approve:(a)a non-complex transaction;and(b)a complex transaction:For non-complex mergers,the CCAB finalises its assessment within 30 working days.In relation to complex mergers,the assessment

210、 period takes 90 working days.26.Kindly indicate whether the competition authority enjoys the power to“stop the clock”for the review of a merger and under what circumstances can this happen.If so,please describe cases where the authority has stopped the clock.Yes.Upon receipt of a merger,if the CCAB

211、 determines that further information is required,and requests such information from the parties in writing,the CCAB is entitled to suspend assessment of the merger until the information is received.27.Please indicate whether,legally or in practice,your competition authority allows for“Carve out”/“ho

212、ld separate”arrangements in the case of global transactions(this means that where clearance is not obtained in your jurisdiction by a specific date,the acquirer would opt not to take over the company in your jurisdiction but will implement the transaction in countries where approval has been obtaine

213、d.The target in your jurisdiction may be left behind with the sellers for future disposal separately,hence no change in control in your jurisdiction would take place in light of the hold separate arrangement).If so,kindly describe cases where this has happened.Yes.The CCAB recognises that due to not

214、ification of mergers in multiple jurisdictions,such mergers may be subject to staggered approvals in the various jurisdictions and therefore,the CCAB allows“hold separate”arrangements in respect of the Botswanan approval.Prohibited Practices 28.Please provide information in relation to any noteworth

215、y penalties that were imposed on any entities engaged in prohibited practices such as cartel conduct,abuse of dominance,etc.None.29.Has the authority brought any cases against parties in a vertical relationship for infringing the competition legislation?If so,please provide details.The CCAB is inves

216、tigating a case against Conduit Investments Proprietary Limited,after receiving a complaint from a whistleblower alleging that the company(a crusher dust producer and supplier)could be abusing its market power by charging its customers(both brick moulding businesses and individual customers)a much h

217、igher price for crusher dust.The allegation is that Conduit Investments Proprietary Limited also competes with customers that mould bricks,as it also has a presence in the downstream market.This case remains ongoing.30.Please explain how exclusivity clauses and non-compete restraints are treated in

218、your jurisdiction.Have there been any prosecution against entities for implementing exclusivity clauses or non-compete restraints?If so,please provide details.Exclusivity and non-compete restraints are not specifically prohibited.That being said,they may be prohibited by the CCAB if,following an inv

219、estigation by the CCAB,the conduct is Baker McKenzie 32 found to have the object or effect of preventing or substantially lessening competition in a market for any goods or services in Botswana.The CCAB will consider,inter alia,whether the agreement in issue limits or controls production,market outl

220、ets,access,technical development or investment.The CCAB has only considered exclusivity clauses in the context of retail lease agreements.An inquiry into the shopping mall retail property market,concluded by the CCA in 2019,held that anticompetitive foreclosure may arise through exclusive dealing pr

221、eventing competitors from selling to customers,through the use of exclusive purchasing obligations and rebates.Therefore,exclusive dealing is a form of abuse of market power,since anticompetitive foreclosure may arise through such a practice.To date,there have been no prosecutions.31.Has the authori

222、ty launched and publicised any investigations recently against any entities for engaging in prohibited practices?If so,please provide details.Yes.In the case of Cotton Fields Proprietary Limited v Total Botswana Proprietary Limited,the CCAB is investigating an allegation of resale price maintenance

223、by Total Botswana Proprietary Limited.The allegation is that Total Botswana Proprietary Limited dictates the price and margins at which its merchants or fuel stations(that have entered into a merchant agreement)are to resell petroleum products and participating goods and services to Total Cardholder

224、s.The investigation is still ongoing.The High Court ruled in November 2022 that the Botswana Medical Aid Society(“BOMAID”)was an enterprise subject to regulation by the Competition Authority under the Competition Act.It found that BOMAID is engaged in business for profit or reward,and its goals are

225、commercial and socioeconomic in nature.Due to this judgment,the CCAB can now proceed with investigations against BOMAID,dating back to 2020.These investigations are relating to alleged anti-competitive practicesthe abuse of dominance.It is thus within the authority of the CCBA to investigate medical

226、 aid societies accused of violating the Competition Act.32.Does the competition legislation contain provisions on the abuse of buyer power?If so,has the authority brought any cases against entities accused of abusing buyer power?If so,please provide details.No.33.Is cartel conduct/anti-competitive c

227、onduct criminalised in your jurisdiction?If so,have any criminal charges been brought/convictions made against any persons and/or entities for engaging in any anti-competitive conduct?If so,please provide details.Yes.However,no charges or convictions have been brought against any person.Regional Bod

228、ies/Cooperation 34.Please confirm whether your jurisdiction is a member of any regional bodies that have a competition law regime(e.g.,COMESA,CEMAC,EAC,etc.).Botswana is not a member of any regional body with a competition law regime.35.Please confirm whether your jurisdiction has signed any Memoran

229、dum of Understanding with any other jurisdiction.If so,kindly provide details.Yes.The CCAB has the following memoranda of understanding in place,namely(i)SADC Memorandum of Understanding on Inter-Agency Cooperation in Competition Policy,Law and Competition in Africa Report 2024 Baker McKenzie 33 Enf

230、orcement;and(ii)Memorandum of Understanding with the Competition Commission of South Africa.In September 2022,The CCBA signed a Memorandum of Understanding with the Competition and Consumer Authority and Fair Trading Commission of Seychelles.36.If a merger is notifiable in your jurisdiction and the

231、thresholds for regional notification are also triggered,are parties required to notify both domestically and regionally?Not applicable.37.Please describe cases where a regional body has engaged with your local competition authority in relation to enforcement of competition law cases or merger review

232、s.None.38.Please describe any announced cooperation between your local competition authority and regional body(ies)in relation to new or ongoing investigations.None.In collaboration with:Peo Legal Chabo Peo Partner T+267 3975779 chabopeolegal.co.bw Baker McKenzie 36 Cameroon General 1.Please describ

233、e any new amendments or guidelines relating to the competition legislation in your jurisdiction that have been proposed or enacted since the information below was provided.There have been no recent amendments to the laws governing competition in Cameroon.As at today,the following regional and nation

234、al laws regulate fair competition in Cameroon,notably:Regional laws Regulation No.06/19-UEAC-639-CM-33 of 7 April 2019 regulating competition in CEMAC.This regulation regulates anti-competitive practices which are likely to have a substantial impact on competition in the market Economic and Monetary

235、 Community of Central African States(commonly known by its French acronym as CEMAC and made up of six member states,notably:Cameroon,Central Africa Republic,Congo,Gabon,Equatorial Guinea,Chad)(“CEMAC Regulation”).Regulation No.000350 relating to the procedure for the application of rules concerning

236、competition.This regulation sets out the modalities for the functioning of Regional Supervisory Bodies as well as the procedure for the application of Regulation No 06/19-UEAC-639-CM-33 regulating competition in CEMAC.Directive No.01/19-UEAC-639-CM-33 relating to the institutional organisation in me

237、mber states for the application of competition laws in CEMAC member states.This directive provides for the uniform application of completion laws in CEMAC member states.National laws Law No.98/013 of 14 July 1998 on Competition.This Law defines anti-competitive practices,provides sanctions against t

238、hem and sets out the modalities for the declaration of mergers and acquisitions likely to affect fair competition in Cameroon.It established the National Competition Commission which oversees and investigates anticompetitive practices(“Competition Law”).Decision No 03/MINCOMMERCE of 16 February 2010

239、 laying out the thresholds,conditions and modalities for declaration of mergers and acquisitions at the National Competition Commission(“NCC”).This Law sets out the thresholds for mandatory declarations of mergers and acquisitions in Cameroon.2.To the extent that there are any market inquiry provisi

240、ons in your jurisdiction,has the competition authority initiated or are there any plans to initiate any market inquiries in relation to any sector/industry?If so,kindly indicate these sectors/industries.The NCC is empowered to carry out inquiries into anti-competitive practices.In accordance with Ar

241、ticle 22 of the Competition Law,the NCC has the following powers:to examine and issue an opinion on all questions relating to the competition policy in Cameroon in particular,on projects legislative and regulatory texts likely to influence the exercise of competition in the internal market;Competiti

242、on in Africa Report 2024 Baker McKenzie 37 to research,control and,if necessary,prosecute and sanction the anti-competitive practices defined in this law;and to provide the expertise and assistance necessary for taking competition court decisions.To this end,it has on several occasions carried out i

243、nquiries in several sectors of the economy,either at the request of a public administration body or upon its own initiative,when the practices of certain companies were likely to affect fair competition.These inquiries were conducted in inter alia,the energy,telecommunications,port and airport,and b

244、rewery sector.We are not aware of any anticipated plan of the NCC to initiate any market inquiries in relation to any other sector or industry.3.Has the competition authority publicly expressed concern in relation to any industry/sector?If so,kindly indicate these sectors/industries.No.The NCC has n

245、ot issued any public statements expressing concerns in relation to a particular sector or industry of the economy.It usually notifies industry players directly on anti-competitive practices.4.Has the competition authority identified any specific sectors as strategic or key sectors for purposes of co

246、mpetition law enforcement?If so,kindly indicate these sectors/industries.The NCC is concerned with maintaining fair competition in all sectors of the economy.5.Are dawn raids by the competition authority a high risk in your jurisdiction?Please provide as much information as possible about dawn raids

247、 conducted by the competition authority.Dawn raids are not a high risk in Cameroon.6.Has the competition authority been proactive in addressing pricing practices of firms through,for example,reaching settlement agreements with firms to cap prices of products/services since?If so,please provide detai

248、ls.The NCC intervenes to prevent price fixing that would lead to unfair competition.As per Article 5(1)of the Competition law,agreements and understandings between natural and/or legal persons enjoying commercial autonomy are prohibited if they have the effect of:fixing prices,tariffs,scales or disc

249、ounts or obstructing the freedom to fix the said prices,tariffs,scales or discounts;limiting production capacities,quantities manufactured,sold,stored,rented or transported;jointly setting the conditions for submission to a call for tenders without informing the person who made the said call for ten

250、ders.However,with regards to negotiations with economic operators for the pricing of goods,the Ministry of Commerce plays a vital role as this falls within its competences.7.Has the competition authority adopted any new regulations or measures that will apply to firms that are active in the digital

251、market space?If so,please provide details.There are no regulations specifically targeting the digital market space.Baker McKenzie 38 8.Has the competition authority identified industries/markets/sectors that it considers to be concentrated?If so,please provide details.We are not aware of any specifi

252、cally identified industries/markets and sectors considered to be concentrated by the national and regional competition regulatory authorities.9.Please indicate whether there is a foreign direct investment review regime in your jurisdiction in relation to mergers involving foreign buyers/acquirers an

253、d kindly indicate the relevant review/regulatory body?If there is,please indicate whether there have been any foreign direct investment notifications to date.If there is no foreign direct investment regime,kindly indicate whether there are any plans announced to introduce it.Yes.There is a foreign d

254、irect investment review regime.The regime is provided for in Regulation No 02/18/CEMAC/UMAC/CM on foreign exchange in CEMAC of 21 December 2018(Foreign Exchange Regulation).In accordance with Articles 118 and 122 of the Foreign Exchange Regulation,all foreign direct investments in Cameroon must be d

255、eclared at the Ministry of Finance and Central Bank,30 days before and after their realization.10.If there is a foreign direct investment regime in your jurisdiction,please indicate whether it applies to all sectors or specific sectors(such as sectors considered to relate to national security).The f

256、oreign direct investment regime applies to all sectors.No.The competition law provides sanctions only against infringing companies.Merger Control Developments 11.What is the general likelihood of a transaction being prohibited by the competition authority?Please also provide examples on past prohibi

257、tions and grounds thereof.In accordance with Article 14 of the Competition Law,where a merger or acquisition reduces competition or is likely to have this effect,it shall be prohibited.The following factors are taken into account to assess the anti-competitive nature of a merger or acquisition:obsta

258、cles to the entry of new competitors into the market,in particular tariff and non-tariff barriers to the entry of imports;the degree of competition between the autonomous decision-making centers existing in the market;the possible disappearance from the market of a company involved in the merger or

259、acquisition,or in the assets being transferred.12.Have any transactions been prohibited by the competition authority in your jurisdiction since January 2022?If so,kindly indicate these cases and reasons for prohibition.We are not aware of any such cases.This information is not publicly available.Com

260、petition in Africa Report 2024 Baker McKenzie 39 13.Are there official proposals to amend merger filing fees and/or monetary thresholds or have such amendments been recently effected?We are not aware of any official proposal to amend merger filing fees and/or monetary thresholds in Cameroon.At prese

261、nt,the mandatory thresholds for declaring mergers and acquisitions are as follows:At the level of the CEMAC sub region:A merger or acquisition shall be notified to the Regional Competition Council when:a)the parties to the transaction have a combined turnover greater than 10 billion CFA francs(appro

262、x.USD 16,512,520.00);or b)collectively,they hold more than 30%of the market share;or c)the concentration operation may have an impact on at least two CEMAC member states.At the national level in Cameroon:A merger and acquisition must be declared to the National Competition council at least three mon

263、ths before transaction when the following conditions are met:a)the combined turnover of the parties to the merger or acquisition during the year preceding the year of declaration is 4 billion CFA francs(approx.USD 6,605,008.00)or above;or b)the market shares held by the parties to the transaction ar

264、e equal or greater than 30%.14.Is the submission of a merger notification suspensory and mandatory in your jurisdiction?If so,has the authority brought any cases against entities accused of gun-jumping and/or prior implementation of a notifiable transaction?If so,kindly provide details.A merger noti

265、fication is mandatory when the thresholds set by the legislator are met.See thresholds above.We are not aware of any sanctions against companies gun-jumping and/prior implementation of a notifiable transaction but such a practice would be sanctioned.15.Is the submission of a merger notification non-

266、suspensory and voluntary in your jurisdiction?If so,has the authority brought any cases against entities for failure to notify a transaction post-completion within the stipulated time period?If so,kindly provide details,including details of instances where the authority has specifically requested no

267、tification of mergers.Please refer to the response above.16.Please describe any cases in which the competition authority fined any entity for failing to comply with merger conditions.Such a situation has not arisen in Cameroon yet,but failure to comply would be sanctioned.Baker McKenzie 40 17.Could

268、a transaction be mandatorily notifiable in your jurisdiction if the target firm has no physical presence in the country?For example,could a filing be triggered if the target firm:(a)only makes sales into the country without having a physical presence;or(b)does not derive any turnover from your juris

269、diction.Practically,does the competition authority insist on such transactions being notified?Yes.The Competition law applies to companies located out of Cameroon when their transaction would have an effect on fair competition in the domestic market.In accordance with Article 57 of the CEMAC Regulat

270、ion,the competition laws apply to all concentration operations with a regional dimension,regardless of the activity and location of the parties to the transaction,when they are likely to have a substantial impact on competition in the CEMAC market.18.Has the authority approved any mergers subject to

271、 novel or otherwise noteworthy conditions?The National Competition Commission may,after the declaration of a merger,grant provisional approval if it needs additional information to make a decision.In such circumstances it must make a request for additional information within 30 days of the declarati

272、on and grant the provisional declaration within three months.The provisional decision would require the parties to the transaction to comply with the final decision.19.Please indicate whether the competition authority has required notification of internal restructurings(that do not involve a change

273、in ultimate control)and,if so,on what basis.No.20.Please indicate whether an obligation to notify could be triggered as a result of a change in direct control over an entity through the interposition of a new entity within the group,albeit that the restructure does not result in a change in ultimate

274、 control.No.21.Please describe cases of mergers that have been approved subject to public interest grounds and kindly describe the nature of these public interest grounds.We are not aware of approved mergers subject to public interest grounds since January 2022,as this information is not made public

275、ly available.Kindly note that the law provides for circumstances in which mergers may be approved subject to public interest grounds,notably:the merger has brought or will bring real efficiency gains to the national economy outweighing the detrimental effects on the market competition;such gains cou

276、ld not be achieved without the merger or acquisition.22.Please describe cases where the competition authority has prohibited a merger transaction based on public interest grounds alone.We are not aware of any transaction that has been prohibited based on public interest grounds.Competition in Africa

277、 Report 2024 Baker McKenzie 41 23.Describe the circumstances in which greenfield/joint ventures mergers are caught under the merger review regime,and kindly provide instances of such mergers that have been notified to and considered by the competition authority.A joint venture merger may be caught u

278、nder the merger control regime where such joint venture meets the notification thresholds stated above.With regards to greenfield joint ventures,Article 4(1)of the Competition Law prohibits anticompetitive practices taken by a company or group of companies in a dominant position in the market.Articl

279、e 4(2)of the Competition Law prohibits abuse by a company or a group of companies in a dominant position.A company or a group of companies abuses its dominant position in the market when it engages in practices which have the effect of significantly restricting competition on the said market,notably

280、:adopts measures having the effect either of preventing a competing company from establishing itself in the market,or of driving out a competitor;puts pressure on distributors to prevent the sales of its competitors products;engages in actions that have the effect of increasing the production costs

281、of competitors.24.What is the maximum approval period of a merger that has been notified in your jurisdiction?A merger must be approved within 3 months of the notification and exceptionally within a maximum period of 6 months from the declaration in the event where the NCC requires complimentary inf

282、ormation on the transaction.25.In practice,on average how long does the authority in your jurisdiction take to approve:(a)a non-complex transaction;and (b)a complex transaction:The Competition Law makes no distinction between complex and non-complex transactions.A merger must be approved within 3 mo

283、nths of the notification and exceptionally within a maximum period of 6 months from the declaration in the event where the NCC requires complementary information on the transaction.26.Kindly indicate whether the competition authority enjoys the power to“stop the clock”for the review of a merger and

284、under what circumstances can this happen.If so,please describe cases where the authority has stopped the clock.The NCC cannot suspend the period granted to review a merger.As stated here above,the NCC is required to issue its decision within a period of 3 months and exceptionally within a period of

285、6months from the date of the notification by parties to the transaction.Silence of the NCC after this period would be deemed as approval.Baker McKenzie 42 27.Please indicate whether,legally or in practice,your competition authority allows for“Carve out”/“hold separate”arrangements in the case of glo

286、bal transactions(this means that where clearance is not obtained in your jurisdiction by a specific date,the acquirer would opt not to take over the company in your jurisdiction but will implement the transaction in countries where approval has been obtained.The target in your jurisdiction may be le

287、ft behind with the sellers for future disposal separately,hence no change in control in your jurisdiction would take place in light of the hold separate arrangement).If so,kindly describe cases where this has happened.There is no restriction on carve out/hold separate arrangements under Cameroon law

288、s.Prohibited Practices 28.Please provide information in relation to any noteworthy penalties that were imposed on any entities engaged in prohibited practices such as cartel conduct,abuse of dominance,etc.We are not aware of any penalties levied against companies in Cameroon.29.Has the authority bro

289、ught any cases against parties in a vertical relationship for infringing the competition legislation?If so,please provide details.We are not aware of any such cases.30.Please explain how exclusivity clauses and non-compete restraints are treated in your jurisdiction.Have there been any prosecution a

290、gainst entities for implementing exclusivity clauses or non-compete restraints?If so,please provide details.Non-compete and exclusivity clauses are permissible under Cameroon law provided they do not affect fair competition in the market.We are not aware of any prosecution against entities which imp

291、lemented non-compete or exclusivity clauses.31.Has the authority launched and publicized any investigations recently against any entities for engaging in prohibited practices?If so,please provide details.The NCC carries out investigations into anti-competitive practices of companies in Cameroon,but

292、such investigations are not publicised.32.Does the competition legislation contain provisions on the abuse of buyer power?If so,has the authority brought any cases against entities accused of abusing buyer power?If so,please provide details.No.We are not aware of any prosecution against entities for

293、 abuse of buyer power.33.Is cartel conduct/anti-competitive conduct criminalized in your jurisdiction?If so,have any criminal charges been brought/convictions made against any persons and/or entities for engaging in any anti-competitive conduct?If so,please provide details.No.Violations of the provi

294、sions of the competition law may give rise to fines,injunctions,penalties and payment of damages.Competition in Africa Report 2024 Baker McKenzie 43 Regional Bodies/Cooperation 34.Please confirm whether your jurisdiction is a member of any regional bodies that have a competition law regime(e.g.,COME

295、SA,CEMAC,EAC,etc.).Cameroon is a member state of the Economic and Monetary Community of Central African States(Cameroon,Central Africa,Congo,Gabon,Equatorial Guinea,Chad).CEMAC member states adopted Regulation No06/19-UEAC-639-CM-33 of 7 April 2019 regulating Competition in CEMAC.The CEMAC Regulatio

296、n established two Regional supervisory bodies,namely:(i)the CEMAC Commission,a decision-making body;and(ii)the Regional Competition Council(“CCC”),which replaces the Competition Supervisory Body(Organe de surveillance de la Concurrence).The Regional Competition Council plays an advisory role in comp

297、etition matters and is equally responsible for carrying out investigations on transactions which could be deemed anticompetitive.35.Please confirm whether your jurisdiction has signed any Memorandum of Understanding with any other jurisdiction.If so,kindly provide details.Yes.Cameroon signed several

298、 memoranda of understanding with a number of jurisdictions.Some recent Memoranda of understanding are highlighted below:a)a Memorandum of Understanding with the United Kingdom,which sets out the arrangements for applying the effects of the economic partnership agreement from 1 January 2021 between t

299、he United Kingdom and Cameroon;and b)a Memorandum of Understanding with South Africa(Law No.2018/004 of 6 April 2018),ratifying the Memorandum of Understanding on Economic Cooperation between the Republic of Cameroon and the Republic of South Africa.36.If a merger is notifiable in your jurisdiction

300、and the thresholds for regional notification are also triggered,are parties required to notify both domestically and regionally?No.Once a merger meets the threshold for regional notification,only the CEMAC Regional Competition Council would have to be notified.Local or national notification is exclu

301、ded.37.Please describe cases where a regional body has engaged with your local competition authority in relation to enforcement of competition law cases or merger reviews.This information is not publicly available.38.Please describe any announced cooperation between your local competition authority

302、and regional body(ies)in relation to new or ongoing investigations.We are not aware of any envisaged cooperation between local and regional authority for investigations.Baker McKenzie 44 In collaboration with:Etah-Nan&Co David Etah Akoh Managing Partner T+(237)233 42 56 09/233 42 91 65 CAPE VERDE Ba

303、ker McKenzie 46 Cape Verde General 1.Please describe any new amendments or guidelines relating to the competition legislation in your jurisdiction that have been proposed or enacted since the information below was provided.Competition is governed by the Competition Act,approved by Decree-Law No.53/2

304、003,of 24 November 2003(“Competition Act”).The Competition Authority of Cape Verde(“AdC”)has been created by Decree-Law No.21/2022,of 10 June 2022(“Decree-Law No.21/2022”)and its board members have been appointed by means of Resolution No.67/2002,of 30 September 2022.The AdC has been fully operation

305、al since 30 January 2023.AdC is a legal person under public law,enjoying organic,functional and technical independence.AdCs main mission is to ensure the application of the rules for the competition promotion and defense contained in the Competition Act,with a view to the efficient functioning of ma

306、rkets,the proper allocation of resources and the consumers interest.AdC has broad regulatory,supervisory and sanctioning powers applicable to public and private companies in all sectors of trade,industry and services.In particular,it is for AdC to investigate and decide on sanctioning proceedings on

307、 restrictive competition practices(such as cartel-type agreements or abuses of a dominant position),as well as to approve or prohibit mergers which are subject to prior notification in Cape Verde.With the entry into operation of AdC,the mergers that meet the criteria provided for in the Competition

308、Act,which until now were the responsibility of the National-Directorate for Industry,Trade and Energy(“NdITE”),are now subject to prior notification to this new specialized authority.It should be noted that the Competition Council foreseen in the Competition Act(which has never been set up),has been

309、 made extinct by the Decree-Law No.21/2022.A small number of regulatory bodies have been set up,with marginal powers on competition matters.The most important by ambit is Agncia Reguladora Multissectorial da Economia(“ARME”),a multi-sectoral regulatory agency created by Decree-Law No.50/2018,of 20 S

310、eptember 2018.ARME is tasked with economic and technical regulation over the business sectors of communications,energy,water,postal services and passenger transport.It is our view that,in the context of the approval of Decree-Law No.21/2022,the legislator could have taken the opportunity to review t

311、he Competition Act as some of the provisions set forth therein are not fully aligned with this new Decree-Law.2.To the extent that there are any market inquiry provisions in your jurisdiction,has the competition authority initiated or are there any plans to initiate any market inquiries in relation

312、to any sector/industry?If so,kindly indicate these sectors/industries.To the best of our knowledge,no market inquiries have been initiated in relation to any sector/industry.3.Has the competition authority publicly expressed concern in relation to any industry/sector?If so,kindly indicate these sect

313、ors/industries.The AdC is operational from 30 January 2023 and up to the moment we are not aware of concerns having been publicly expressed in relation to any industries/sectors in general.Competition in Africa Report 2024 Baker McKenzie 47 4.Has the competition authority identified any specific sec

314、tors as strategic or key sectors for purposes of competition law enforcement?If so,kindly indicate these sectors/industries.No.Please refer to the response above.5.Are dawn raids by the competition authority a high risk in your jurisdiction?Please provide as much information as possible about dawn r

315、aids conducted by the competition authority.No.To the best of our knowledge,no dawn raid has been carried out.Dawn raids may be carried out at the AdCs initiative,whenever it deems appropriate or required,but subject to an authorization issued by a judiciary authority.6.Has the competition authority

316、 been proactive in addressing pricing practices of firms through,for example,reaching settlement agreements with firms to cap prices of products/services since?If so,please provide details.No.However,ARME,in its capacity of regulatory entity,has shown oversight proactivity with regard to the industr

317、ies/sectors within its purview,namely communications,energy,water,postal services and passenger transport.ARME has shown oversight primarily in relation to economic regulation through price and margins controls,and occasionally in the context of certain pricing practices,such as competitive discount

318、s,promotions and the like,most notably in the communications sector.7.Has the competition authority adopted any new regulations or measures that will apply to firms that are active in the digital market space?If so,please provide details.Not applicable.8.Has the competition authority identified indu

319、stries/markets/sectors that it considers to be concentrated?If so,please provide details.Not applicable.9.Please indicate whether there is a foreign direct investment review regime in your jurisdiction in relation to mergers involving foreign buyers/acquirers and kindly indicate the relevant review/

320、regulatory body?If there is,please indicate whether there have been any foreign direct investment notifications to date.If there is no foreign direct investment regime,kindly indicate whether there are any plans announced to introduce it.Mergers and acquisitions involving foreign buyers may be subje

321、ct to competition control clearance,in light of the company concentration provisions included in the Competition Act.10.If there is a foreign direct investment regime in your jurisdiction,please indicate whether it applies to all sectors or specific sectors(such as sectors considered to relate to na

322、tional security).A fast-track foreign direct investment regime applies to investments up to CVE 5 million(approx.USD 48,954),but excludes those in the financial sector and those made by investors whose capital is at least 50%owned in by foreign States.No.Baker McKenzie 48 Merger Control Developments

323、 11.What is the general likelihood of a transaction being prohibited by the competition authority?Please also provide examples on past prohibitions and grounds thereof.The AdC has only been operational since 30 January 2023 and,to the best of our knowledge,thus far it has not prohibited any transact

324、ion.However,the likelihood of a transaction being prohibited largely depends on its specificities and its possible(negative)effects at a competition level.12.Have any transactions been prohibited by the competition authority in your jurisdiction since January 2022?If so,kindly indicate these cases a

325、nd reasons for prohibition.To the best of our knowledge,no.13.Are there official proposals to amend merger filing fees and/or monetary thresholds or have such amendments been recently effected?Merger filing fees have yet to be published.In practice,no filing fees have been requested when filing a me

326、rger.14.Is the submission of a merger notification suspensory and mandatory in your jurisdiction?If so,has the authority brought any cases against entities accused of gun-jumping and/or prior implementation of a notifiable transaction?If so,kindly provide details.Yes.The submission of a merger notif

327、ication is mandatory and suspensory,and therefore a merger subject to notification cannot be completed before being filed with the relevant entity and cleared,either as per a notice to the filing parties or through implied consent after a certain term has lapsed.There is no publicly available inform

328、ation regarding any cases against entities accused of gun-jumping and/or prior implementation of a notifiable transaction.15.Is the submission of a merger notification non-suspensory and voluntary in your jurisdiction?If so,has the authority brought any cases against entities for failure to notify a

329、 transaction post-completion within the stipulated time period?If so,kindly provide details,including details of instances where the authority has specifically requested notification of mergers.No.The filing obligation is mandatory,if the notification thresholds are satisfied.16.Please describe any

330、cases in which the competition authority fined any entity for failing to comply with merger conditions.Not applicable.17.Could a transaction be mandatorily notifiable in your jurisdiction if the target firm has no physical presence in the country?For example,could a filing be triggered if the target

331、 firm:(a)only makes sales into the country without having a physical presence;or(b)does not derive any turnover from your jurisdiction.Competition in Africa Report 2024 Baker McKenzie 49 Practically,does the competition authority insist on such transactions being notified?Provided that the notificat

332、ion thresholds are met,a transaction is notifiable irrespective of the target having a physical presence in Cape Verde.Kindly note that the Competition Act states that the statute is applicable to practices restricting competition that occur in national territory or that have or may have effects the

333、rein.18.Has the authority approved any mergers subject to novel or otherwise noteworthy conditions?Not applicable.19.Please indicate whether the competition authority has required notification of internal restructurings(that do not involve a change in ultimate control)and,if so,on what basis.Not applicable.20.Please indicate whether an obligation to notify could be triggered as a result of a chang