1) Is a merger control regulation in force?

Yes. The relevant merger control legislation in the Common Market for Eastern and Southern Africa (“COMESA”) are the COMESA Competition Regulations (“the Regulations”) and the COMESA Competition Rules (“the Rules”), as amended. The COMESA Merger Assessment Guidelines (“the Merger Guidelines”) have also been published and further provide essential guidance regarding the preparation, filing, and assessment of mergers. Mergers are dealt with in Part 4 of the Regulations and Part 4 of the Rules.

It should be noted that COMESA was established under the Treaty Establishing the Common Market for Eastern and Southern Africa (“the COMESA Treaty”) signed on 5 November 1993 in Kampala, Uganda and whose objective is to promote economic integration through trade and investment in Eastern and Southern Africa.

COMESA comprises 21 Member States, namely:

•  Burundi 
• Comoros
• the Democratic Republic of Congo
• Djibouti
• Egypt
• Eritrea 
• eSwatini
• Ethiopia
• Kenya
• Libya
• Madagascar
• Malawi
• Mauritius
• Rwanda
• Seychelles
• Sudan
• Somalia
• Tunisia
• Uganda
• Zambia
• Zimbabwe.

2) Which authorities enforce the merger control regulation?

The Rules, Regulations and Merger Guidelines are enforced by the COMESA Competition Commission (“the CCC”), and on appeal, by the Board of Commissioners (“the Board”). In circumstances where any person is aggrieved by any decision of the CCC, such person may appeal to the Board. The Board is the supreme policy body of the CCC.

3) Relevant regulations and guidelines with links:

Links to the relevant Regulations, Rules, Merger guidelines, and Appeal Board Procedure (where applicable) are listed below:

4) Does general competition regulation apply to mergers or ancillary restrictions?

Yes, the function of the CCC is to enforce and apply the Rules and Regulations to ensure that a proposed merger does not substantially prevent or lessen competition within the market. This exercise by implication involves the application of general competition regulation, which is inferred from the applicable Rules and Regulations, together with the provisions specifically dealing with merger control within this jurisdiction.

Further, general competition regulation apply to ancillary restrictions of a proposed merger. If competition considerations arise stemming from an ancillary restriction to a proposed merger, the CCC has the necessary authority to consider modifications, prohibitions, restrictions, and other conditions to address the CCC’s concerns. The CCC may also undertake any inquiry in order to ascertain any competition concerns.

5) May an authority order a split-up of a business irrespective of a merger?

No.

6) Other authorities that also require merger filing or may prohibit transaction
(Note that this may not be an exhaustive list and that industry-specific legislation should always be considered. Furthermore, a merger will often require change of registrations with – but not approval from – the companies register, land register and authorities that have issued permits for the activities of the merging parties.)

The COMESA Member States subscribe to the rules, polices and regulations of COMESA. Whilst COMESA establishes a single regulatory body to ensure uniformity amongst Member States, these States may still function under their own National Competition Law.

Article 24(8) of the Regulations provide that if a member state has obtained knowledge of a merger notification submitted to the CCC, the member state may request the CCC to refer the merger for consideration under the member state’s National Competition Law.

The CCC shall, upon receipt of such request and within 21 days, deal with the case itself in order to maintain or restore effective competition in the market or region as a whole. Or, refer whole or part of the case to competition authorities of the Member State concerned in order for the merger to be assessed in accordance with the National Competition Law of that Member State.

Foreign investment control

There is no separate foreign investment control legislation.

7) Are any parts of the territory exempted or covered by particular regulation?

No.

8) Is merger filing mandatory or voluntary?

Yes. The Regulations require the mandatory notification of mergers and acquisitions that satisfy the requirements of Part 4 of the Regulations.

In addition, Article 23(6) of the Regulations provide that the CCC may require parties to a non-notifable merger to notify the CCC of that merger, if it appears to the CCC that the merger is likely to substantially prevent or lessen competition, or is likely to be contrary to public interest.

9) Is there a general definition of transactions subject to merger control?

Yes. A “merger” is defined as the direct or indirect acquisition or establishment of a controlling interest by one or more persons in the whole or part of the business of a competitor, supplier, customer, or other person, whether that controlling interest is achieved as a result of:

1. the purchase or lease of the shares or assets of a competitor, supplier, customer or other person;
2. the amalgamation or combination with a competitor, supplier, customer or other person; or
3. any means other than those specified in the first two points above.

A merger where both the acquiring firm and target firm, or either the acquiring firm or the target firm, operate in two or more COMESA Member States (i.e. a merger with a “regional dimension”) and where certain prescribed thresholds of combined annual turnover or assets (whichever is higher) are exceeded, constitutes a notifiable merger and must in the ordinary course be notified to the CCC.

10) Is "change of control" of a business required?

Yes, generally a merger will only be considered to take place if the transaction results in a change of control over the whole or part of the business of another firm. The Regulations clearly state that merger encompasses the establishment of a controlling interest by one or more persons.

In addition, transactions that result in the establishment of a new business (a joint venture) will also constitute a merger within the meaning of Article 23(1) of the Regulations, provided that it results in a “full-functional” joint venture. This means that it must perform, for a long duration, all the functions of an autonomous economic entity. These provisions similarly apply to greenfield joint ventures provided that this results in a fully functional joint venture i.e. has its own independent resources and is able to operate as a separate economic entity.

11) How is “control” defined?

The Regulations, Rules, and Merger Guidelines do not expressly define “control”. However, it does define “controlling interest”. Article 23(2) of the Regulations provides the following definition:

1. In relation to any undertaking, any interest which enables the holder thereof to exercise, directly or indirectly, any control whatsoever over the activites or assets of the undertaking; and
2. In relation to any asset, any interest which enables the holder thereof to exercise, directly or indirectly, any control whatsoever over the asset.

Control within the context of this definition can take many forms. These include various types of rights (e.g. property and contract), which may be acquired in one transaction or over the course of several transactions, may be exercised directly or indirectly, and may be exercised by various means (e.g. voting of securities). The CCC regards “control” as being constituted by rights, contracts or any other means which, either separately or in combination and having regard to the considerations of fact or law involved, confer the possibility of exercising decisive influence on the undertaking or asset concerned.

In determining “decisive influence”, the CCC will take into account whether this person/entity:

1. Has the ability to determine a majority of votes that may be cast at a general meeting of the undertaking;
2. Is able to appoint or to veto the appointment of a majority of the directors of the undertaking;
3. Has the ability to determine the appointment of senior management, strategic commercial policy, the budget or the business plan of the undertaking; or

Has a controlling interest in an intermediary undertaking that in turn has a controlling interest in the undertaking.

12) Acquisition of a minority interest

The acquisition of a minority interest may be sufficient to trigger a merger filing under the Merger Guidelines, even if there is no formal change of control, provided that the minority interest confers the possibility of exercising decisive influence e.g. veto rights if they relate to strategic business decisions. 

13) Joint ventures/joint control – which transactions constitute mergers?

According to the Merger Guidelines, a joint venture must be filed if it creates a “full-functional” joint venture with a controlling interest, has a regional dimension, meets the turnover/asset threshold, and does not concentrate turnover/assets in only one Member State.

A joint venture is “full-functional” if it performs, for a long duration (typically 5 years or more), all the functions of an autonomous economic entity. This includes but is not limited to:

1. Operating within a market and performing the functions normally carried out by undertakings operating in the same market; and
2. Having a management level dedicated to its day-to-day operations an access to sufficient resources including finance, staff, and assets.

14) Which thresholds decide whether a merger notification must be filed?
(Unless explicitly stated otherwise, the thresholds described under one threshold category are not cumulative with those described under another category. Thus for instance if there is a market share threshold and a turnover threshold, it is sufficient to meet one of these, unless stated otherwise.)

a) Turnover thresholds

Firstly, the regional dimension test must be satisfied, i.e.:

1. both the acquiring firm and target firm each operate in at least two Member States;
2. the acquiring firm operates in at least two Member States, while the target firm operates only in one Member State; or
3. the target firm operates in at least two Member States, while the acquiring firm operates only in one Member State or no Member State at all.

Secondly, once the regional dimension test is satisfied, the financial threshold test must also be satisfied. This test requires that:

1. the combined annual turnover or combined value of assets, whichever is higher, in the Common Market of all parties to a merger, equals or exceeds USD 50 million; and
2. the annual turnover or value of assets, whichever is the higher, in the Common Market of each of at least two of the parties to a merger equals or exceeds USD 10 million, unless each of the parties achieve at least two-thirds of its aggregate turnover in the Common Market in one and the same Member State (in which case that Member State’s national notification obligations will apply).

b) Market share thresholds

N/A

c) Value of transaction thresholds

See topic 14a.

d) Assets requirements

See topic 14a.

e) Other

N/A

15) Special thresholds for particular businesses

No special thresholds exist for a particular business or industry. All mergers, regardless of sector, are subject to the same notifiability criteria.

Any party seeking to file a proposed merger, can seek clarification through the pre-notification consultations with the CCC in terms of Section 4 of the Merger Guidelines. 

16) Rules on calculation and geographical allocation of turnover

Calculation of turnover:

1. Turnover refers to the revenue from sales of goods or services by the merging parties in the Common Market, calculated in accordance with the Generally Accepted Accounting Principles (“GAAP”). Annual turnover and value of assets of an undertaking will be calculated by adding together, respectively, the annual turnover and value of assets in the Common Market of the following: a) the undertaking concerned, b) its subsidiaries, c) its parents (meaning parent companies), together with the parents of those parents, and d) other subsidiaries of its parents not included in b). However, annual turnover will not include amounts derived from the sale of products or the provision of services between the parties referred to in a) – d), i.e. group internal turnover. Where the annual turnover and asset value of a subsidiary are included in the calculation, the value of that subsidiary’s shareholding or interest in any other undertaking must not be taken into account;
2. Furthermore, the annual turnover and value of assets of a target undertaking’s parents and its parent’s subsidiaries will not be taken into account, if after the implementation of a merger such parents are no longer the parents of the target undertaking, or the merger undertaking in the case of an amalgamation or combination;
3. Where an undertaking has a Member State or a state-owned enterprise of a Member State as its parent, the annual turnover and value of assets of the Member State will not be included. Each state-owned enterprise is assessed separately on the basis of its own turnover and assets (and those of the entities it directly or indirectly controls). The turnover and assets of other unrelated state-owned businesses, even if also ultimately owned by the same Member State, are not automatically combined.
4. Where the merger consists of the acquisition of parts of one or more undertakings, only the turnover relating to the parts will be taken into account;
5. Annual turnover will comprise turnover in the most recent financial year, and value of assets will comprise the value of assets as at the end of the most recent financial year. Geographically, turnover is attributed to the place where the customers are located;
6. Lastly, see topic 14 regarding geographical allocation of turnover.

For the purposes of calculation, if the currency is not the United States Dollar, the parties’ turnover for a financial year, or value of assets, should be converted to the United States Dollar according to the applicable foreign exchange rate reported by the Central Bank where such currency is issued. The CCC may also approach the Revenue Authorities of a Member State to assist in this calculation.

Is the seller/seller’s group turnover relevant in a standard acquisition of sole control?

No.

17) Special rules on calculation of turnover for particular businesses

N/A

18) Series of transactions that must be treated as one transaction

The Merger Guidelines do not expressly address the concept of a series of transactions that results in one single transaction. However, Section 2.4 of the Merger Guidelines provides that control can be acquired in one transaction, or over the course of several transactions. Therefore, based on the definition of a merger, which requires the establishment or acquisition of a controlling interest, if a series of transactions are interrelated, meets the thresholds requirements, and results in the vesting of a controlling interest that results in the exercise of decisive influence over an entity, it can be treated as one single transaction.

19) Temporary change of control

A transaction is notifiable if it falls within the definition of a merger and if the threshold requirements are met. However, the draft COMESA Competition and Consumer Protection Regulations (2024), which is not yet if force and effect, proposed an amendment to the definition of a “merger” by incorporating the following: “…or a change of control held, on a lasting basis…”. Whilst not yet in force, it supports the current notion that a temporary change of control is insufficient.

20) Special industries, owners or types of transactions

The following types of transactions are exempted from merger control:

1. Internal restructuring within a group of undertakings do not constitute an acquisition or establishment of a controlling interest.
2. The acquisition of control by a liquidator according to the law of that Member State relating to liquidation, winding up and similar matters will not be treated as a merger.
3. If ownership of an undertaking is acquired by an interim buyer, with a view to onward sell the undertaking within less than one year, in the ordinary course of business, this will not result in the establishment of a controlling interest and therefore is exempted.
4. Transactions entered into solely for financing purpose will be considered by the CCC on a case-by-case basis.

Also note that, the acquisition of control over assets will only be considered a merger if those assets constitute the whole or part of a business.

21) Transactions involving only foreign businesses (foreign-to-foreign)

No exemption exists in respect of transactions involving only foreign businesses. Article 3 of the Regulations state that the Regulations apply to all “…economic activities whether conducted by private or public persons within, or having an effect within, the Common Market…”

If foreign parties to a proposed merger satisfy the notifability criteria set out above, and this transaction takes place within, or has an effect within, the Common Market, such transaction is subject to the merger control legislation.

22) No overlap of activities of the parties

No exemption exists for mergers with “no overlap of activities”. Notifiability depends on the criteria being met, and not the nature of the parties’ activities.

23) Other exemptions from notification duty even if thresholds ARE met?

According to Article 4, the Regulations do not apply to the following:

1. Arrangements for collective bargaining on behalf of employers and employees for the purpose of fixing terms and conditions of employment;
2. Activities of trade unions and other associations directed at advancing the terms and conditions of employment of their members;
3. Activities of professional associations designed to develop or enforce professional standards reasonably necessary for the protection of public interest.

24) May a merging party file voluntarily even if the thresholds are not exceeded?

Article 23(6) of the Regulations provide that the CCC may require parties to a non-notifable merger to notify the CCC of that merger if it appears to the CCC that it is likely to substantially prevent or lessen competition or is likely to be contrary to public interest.

It is advisable that parties engage in pre-notification consultations with the CCC in order to assess whether or not the merger is required to be notified. These pre-notification consultations also make provision for parties to a merger to submit a reasoned request for a “comfort letter”. This letter provides confirmation to parties of a potential merger, that the merger is not notifiable as it does not have an appreciable effect on trade between Member States. Therefore, whilst there is no express prohibition on voluntary filing, parties should rather consult with the CCC prior to filing to seek clarity, avoid wasteful costs, and to potentially avoid later scrutiny.

Important to note, if a merger is not notifiable, the parties may still be subject to notification requirements in terms of the National Competition Authorities of Member States.

25) May the competition authority request a merger notification or oppose a transaction even if thresholds are not met?

Yes, see topic 24.

26) Referral within the jurisdiction

N/A

27) Referral from another jurisdiction

The National Competition Law of Member States do not apply to mergers with a cross-border effect as they lack extra-territorial application. Simply put, the application of National Competition Law do not extend beyond the boundaries of their borders. Therefore, there is an obligation that all mergers with a cross-border effect, in relation to Member states of COMESA, is to be referred to and dealt with by the CCC.

As dealt with in topic 6, a single COMESA filing may replace multiple filings under national legislation. However, there are a few jurisdictions in Eastern and Southern Africa that are not members of COMESA, including South Africa. This means, for example, that a foreign entity acquiring control of a South African entity with subsidiaries in eSwatini and Malawi may need to obtain approval from the South African competition authorities (if the thresholds for mandatory notification in South Africa are met) and from the CCC if the applicable thresholds are met (as eSwatini and Malawi are COMESA Member States).

28) Referral to another jurisdiction

There are no rules on automatic referral of mergers from COMESA to COMESA member states or authorities in other jurisdictions.

A Member State, having obtained knowledge of a proposed merger, may request the CCC to refer the merger for consideration under the member state’s National Competition Law. Such request, however, may be denied by the CCC in order to maintain competition.

29) May the merging parties request or oppose a referral decision?

No provision is made for parties to a merger to oppose the referral in terms of Article 24(8), nor do parties have the right to request such referral. If the criteria is met, the merger is to be filed according to COMESA’s merger control legislation.

30) Stage of transaction when notification must be filed

Article 24(1) of the Regulation requires notification of a notifiable merger as soon as it is practicable, but no later than 30 days after the merging parties’ decision to merge. The CCC considers that this decision to merge must either be (i) a joint decision taken by the merging parties, comprising the conclusion of a definitive, legally binding agreement to carry out the merger, or (ii) an announcement of a public bid in the case of publicly traded securities.

31) Pre-notification consultations

The CCC permits pre-notification contacts where necessary. Pre-notification contacts can assist to engage with the CCC beforehand on the approach that will be taken in a particular merger filing and the information that the CCC will require during its assessment.

Parties typically engage in pre-notification consultations with the CCC in order to determine:

1. whether or not a transaction is a merger;
2. whether notification is required;
3. the correct calculation of annual turnover, value of assets, market shares, and the merger notification filing fee and other matters;
4. information to be supplied in a comfort letter request;
5. discussions pertaining to the requirements of Form 12; and
6. requests pertaining to confidentiality of information and/or documents.

32) Special rules on timing of notification in case of public takeover bids and acquisitions on stock exchanges

No special rules exists. Notification is required within the normal 30 days of the decision to merge as set out in topic 30.

The COMESA merger control regime is non-suspensory and therefore parties my implement their merger before approval is granted and after notification has been made. By implication, nothing prohibits the acquirer from purchasing shares, within the above context, prior to notification. However, parties must take caution to not implement a merger to their own detriment should the CCC reject the proposed merger.

33) Forms available for completing a notification

Merger notifications are made by using the prescribed Form 12.

Parties may further request that any documents or information submitted be treated as confidential by submitting a request for confidentialy in the prescribed Form 2.

34) Languages that may be applied in notifications and communication

English.

35) Documents that must be supplied with notification

All supporting information and documents must be filed with Form 12. This includes but is not limited to:

1. Annual reports of the merging parties for the last three (3) years;
2. Financial statements of the merging parties for the last three (3) years;
3. Current list of shareholders of the merging parties and their nationality;
4. Current list of Directors of the merging parties and their nationality;
5. The Merger agreement;
6. Internal memoranda analyzing the proposed merger;
7. Board resolutions appointing company representatives for the purposes of the merger, and the letter appointing legal representatives for the purposes of this transaction;
8. In a public bid, a copy of the offer document; if unavailable at time of notification, a copy of the most recent document demonstrating the intention to launch a public bid must be provided and a copy of the offer document must be submitted as soon as possible.

In addition, copies of all the documents prepared by, or for, or received by any member(s) of the board of management, the board of directors, or the supervisory board, as applicable in light of the corporate governance structure, in particular copies of technical reports relating to:

1. Presentations analyzing different options for acquisitions, including but not limited to the notified merger;
2. Analyses, reports, studies, surveys and any comparable documents for the purpose of assessing or analyzing the merger with respect to its rationale, market shares, competitive conditions, competitors, potential for sales growth or expansion into other product or geographic markets;
3. Any other document which may assist the CCC.

36) Filing fees

A merger notification fee is required, which is calculated as 0,1% of the merging parties’ combined annual turnover or combined value of assets (whichever is higher) in the Common Market subject to a maximum of USD 200 000.

The CCC will within 7 days after the submission of a complete merger notification, issue an invoice to the notifying party. This invoice is payable within 7 days of receipt thereof. If a merger notification is referred to a Member State in terms of Article 24(8) of the Regulations, the Member State’s National Competition Law will apply, and therefore by implication, the merging parties will be bound by the procedure set out therein in terms of the calculation of the filing fee and payment terms thereof.

37) Is implementation of the merger before approval prohibited?

No, the COMESA merger control regime is non-suspensory and parties may implement their merger before approval is granted and after notification has been made. However, caution should be exercised as the parties may implement the merger at their own peril should the Commission decide to reject the merger. If during assessment, the CCC determines that such merger is unlawful in terms of Article 26(7) (contrary to public interest), the merging parties may be required to dissolve the merger or to take steps to render the merger lawful.

It is also important that parties do not confuse prior implementation with a failure to notify at all. Notifiable mergers, may be implemented prior to approval, but must nevertheless be notifed. Failure to do so may result in the CCC imposing a financial penalty of up to 10% of either or both of the merging parties’ annual turnover in the Common Market.

38) May the parties get permission to implement before approval?

See topic 37.

39) Due diligence and other preparatory steps

Parties are encouraged to engage in due diligence exercises prior to making any decision to merge. There is no prohibition against due diligence being conducted by parties to ensure that the proposed merger is economically viable and aligns with the respective entities’ objectives.

In addition, parties should engage in pre-notification consultations with the CCC to obtain clarity as to whether the merger meets the notifiability criteria, and to confirm the required documents to be submitted. Form 12 must be completed with accurate details pertaining to the merging parties, transaction, and the relevant economic data. Parties must at all times ensure that the information contained on the merger notification, is correct and supported by the required documentation.

40) Veto rights before closing and "Ordinary course of business" clauses

See topic 37.

41) Implementation outside the jurisdiction before approval – "Carve out"

See topic 37.

42) Consequences of implementing without approval/permission

See topic 37.

43) Phases and deadlines

The CCC will assess each merger notified to determine whether it is more likely than not to substantially prevent or lessen competition. At the conclusion of the assessment, the CCC will issue its decision declaring that either it does not object to the merger, potentially subject to certain conditions, or that it objects.

This decision must be made within 120 calender days of receiving a complete notification. The assessment of a merger is divided into Phase 1 and Phase 2, which functions as set out below. In each phase of the assessment, the CCC will inform the parties of its concerns regarding the merger, and provide a reasonable opportunity to propose modifications to address the CCC’s concerns, and assess the merger in light of such proposals received. At any time during an assessment, the CCC may request information from the parties in order to assist its assessment. The Phases function as follows:

Phase 1:

1. This commences on the first day of the 120-day review period, and expires no later than 45 days thereafter;
2. During this phase, the CCC must determine on a balance of probabilities that the notifiable merger will not substantially prevent or lessen competion, and that there are no reasonable grounds for believing that additional evidence could be obtained, or further assessment made in Phase 2 which could lead to a reversal or improvement of this determination. The CCC will notify the parties and publish its decision on its website that it does not object to the merger;
3. This decision may be conditional upon modifications, prohibitions, restrictions, and other conditions specified in the decision;
4. If during Phase 1, it is determined on a balance of probabilities that the merger is likely to substantially prevent or lessen competition, and that there are reasonable grounds to believe that additional evidence can be obtained in this regard, the CCC will notify the parties of its decision to proceed to Phase 2 whereupon Phase 1 will immediately expire. This decision to proceed to Phase 2 will also be published on the website;
5. If upon expiration of Phase 1, the CCC has failed to issue a decision, nor has the merger been referred to a Member State in terms of Article 24(8) and (9), it is deemed to have accepted the merger.

Phase 2:

1. This will commence immediately once referral to this Phase is made, and will expire at the end of the 120-day review period;
2. During this phase, the Director of the CCC will submit a report to the Committee setting out the legal and economic arguments as to why the proposed merger substantially prevents or lessens competition;
3. The Committee will evaluate this report, and if on a balance of probabilities determines that it does indeed prevent or lessen competition, it will object to the merger, if not, the merger will be accepted subject to conditions if applicable;
4. Upon expiration of this phase (expiry of the 120-day period) the CCC has not issued a decision, it will be deemed to have accepted the merger.

Extension:

The CCC may extend the periods of either Phase 1 or 2 with the approval of the Board of Commissioners, provided that such extensions do not cumulatively exceed 30 days.

44) Tests or criteria applied when a merger is assessed

The test applied to a merger is whether it is likely to substantially prevent or lessen competition and, if so, whether any technological, efficiency or other pro-competitive gains may result from the merger that may offset the lessening of competition. Relevant factors to be considered are:

1. the actual and potential level of import competition in the market;
2. the ease of entry into the market, including tariff and regulatory barriers;
3. the level and trends of concentration, and history of collusion, in the market;
4. the degree of countervailing power in the market;
5. the likelihood that the acquisition would result in the merged parties having market power;
6. the dynamic characteristics of the market, including growth, innovation and product differentiation;
7. the nature and extent of vertical integration in the market;
8. whether the business or part of the business of a party to the merger or proposed merger has failed or is likely to fail; and
9. whether the merger will result in the removal of an effective competitor.

If it is found that the merger is likely to substantially prevent or lessen competition, then it must be determined whether or not the merger is likely to result in any technological, efficiency or other pro-competitive gains which will be greater than, and offset, the effects of any prevention or lessening of competition, that may result or is likely to result from the merger, and would not likely be obtained if the merger is prevented.

A further step in the consideration of mergers is the assessment of whether the merger may be justified (despite any anti-competitive effects) on substantial public interest grounds. A merger shall be contrary to public interest if the CCC is satisfied that the merger will:

1. substantially lessen, or is likely to lessen the degree of competition in the Common Market;
2. result in, or is likely to result in, or strengthen a position of dominance which is or will be contrary to public interest.

In determining whether it is contrary to public interest, the following factors shall be considered:

1. Maintaining and promoting effective competition between persons producing or distributing commodities and services in the region;
2. Promoting the interests of consumers, purchasers, and other users in the region, with regards to prices and quality;
3. Promoting thorough competition, the reduction of costs, and the development of new commodities, and further facilitating the entry of new competitors into existing markets.

The CCC may undertake any inquiry in order to ascertain any competition concerns. The CCC shall take all reasonable steps to notify the relevant Member States before conducting any inquiry as set out above.

45) May any non-competition issues be considered?

See topic 44.

46) Special tests or criteria applicable for joint ventures

See topic 13; no special test or criteria is applicable to joint ventures.

47) Decisions and remedies/commitments available

A merger may be accepted, accepted with conditions, or rejected.

Article 26 of the Regulations provides as follows: “Before making an order under this Article, the CCC shall ensure that every person affected thereby is informed of the general content of the order it proposes to make and is given an adequate opportunity to make representations in the matter.” Accordingly, where the CCC has concerns about a particular merger, it will inform the merging parties before a decision is made to either impose conditions to remedy the negative effects or prohibit the merger.

If the CCC finds that the merger will be contrary to public interest, it may make an order declaring the merger unlawful, prohibiting or restricting the acquisition by any person of the whole or part of the undertaking or assets of the undertaking, requiring any person to take steps to secure the dissolution of any organization, and may generally make any such provision that, in the opinion of the CCC, is reasonably necessary.

The CCC, when accepting a proposed merger, may further provide for the following:

1. Transfer or vesting of property, rights, liabilities, or obligations;
2. The adjustment of contracts;
3. The creation, allotment, surrender or cancellation of any shares, stocks or securities;
4. The formation or winding up of any undertaking or the amendment of the memorandum or articles of association or any other instrument regulating the business of any undertaking.

Notwithstanding the above, when accepting a merger, the CCC may, impose any condition to address competition issues raised.

48) How and when will details about the merger be published?

Details of the merger is published on the CCC’s website as soon as the merger is accepted in Phase 1 or referred to Phase 2, and after notification to the respective parties concerned, or once a decision to accept or reject the merger is made in Phase 2 of the assessment.

Details are further published via notice in the COMESA Gazette. The publication on the website, and in the Gazette will be a non-confidential version of the CCC’s findings regarding the proposed merger.

49) Access to the file for the merging parties and third parties

The merging parties:

The merging parties have a right to access to the file, which includes correspondence with third parties; however, the CCC may redact third parties’ confidential information, which often includes the identity of such third parties.

Third parties:

Third parties do not have access to the file. Third parties will gain access by means of the publication of the decision on the CCC’s website, and in the COMESA Gazette. This publication on the website and in the Gazette, will only contain non-confidential information regarding the merger filing.

50) Who can appeal and what may be appealed?

Under Article 26(12) of the Regulations, any person aggrieved by the decision of the CCC will have a right to appeal to the Board. The Board may hear appeals from, or review any decision by the CCC that may, in terms of the Regulations, be referred to it and may make any ruling or order necessary or incidental to the performance of its functions in terms of the Regulations.

This appeal must be submitted within 30 days after the publication of the decision. This appeal may not include or rely on any document or information that was not already before the CCC during the initial review of the merger, unless such document or information was not reasonably available.

Within 14 days after receipt of an appeal, the CCC will publish on the website the names of the parties to the appeal, a reference to the decision which is being appealed, and a copy of the appeal to the Board, as submitted. Interested parties and the CCC may make submissions within 30 days after the date of publication on the website. During the evaluation of an appeal, the Board shall have all the necessary powers ordinarily granted to the CCC in terms of the Competition rules.

The Board must make a decision regarding the appeal within 90 days after the above publication on its website.  The CCC must publish the outcome of an appeal within 7 days of having been issued by the Board. Upon consideration of the appeal, the Board may annul the CCC’s decision and remit it to the CCC to re-examine the merger in light of the current market conditions. It may also require the notifying party to, amend and restate or supplement the merger notification where the original notification is incomplete or erroneous. If the decision is remitted to the CCC, the CCC must within 45 days after receipt of the amended, restated, or supplemented notification, finalise its decision.

Decisions of the Board may be appealed to the COMESA Court of Justice based in Khartoum, Sudan.