By Hilary Mare
THE Namibia Competition Commission (NaCC) together with eight other Southern African Development Community (SADC) competition authorities have entered into a cooperation deal to enhance effective enforcement of national competition laws and has mooted the possibility of a regional competition body in the long run.
The deal initially just for cooperation was signed by Botswana, Malawi, Mozambique, Seychelles, South Africa, Swaziland, Tanzania and Zambia, and also has an option to review and extend after its duration of three years.
Speaking to this publication, NaCC Chief Executive Officer Mihe Gaomab II explained that the agreement is premised on the need for more cooperation in the SADC region in order to have common approaches in capacity building and various other elements and the possibility of a regional competition body.
“We have always been just meeting and exchanging experiences as competition authorities but this deal lays down a formal basic for the exchange of information in case findings and presents a common approach to technical assistance and capacity building. “We would collaborate in enforcement, research and merger control and my view is that we will in the review period establish competitive approach to cross boarder cases such as monopolies,” he said.
Cooperation on competition policy issues is protected in Article 40 of the Southern African Customs Union (SACU) and provides members (South Africa, Botswana, Lesotho, Namibia and Swaziland) “shall co-operate with each other with respect to the enforcement of competition laws and regulations”. The SACU agreement also says each member must adopt a competition policy. In the case of SADC, Article 25 of the Protocol on Trade obliges members to “implement measures within the Community that prohibit unfair business practices and promote competition”. Equally, the SADC protocol on trade in services (not in force) recognises the importance of cooperation on issues concerning competition law enforcement such as notification, consultation and exchange of information. It obliges member states to “notify any other State Party of competition enforcement activities that may affect important interests of such state party or state parties, and it shall accord state parties sympathetic consideration and afford adequate opportunity for any matter affecting the operation of this protocol”(Article 19(4)).
In the case of matters concerning anticompetitive business practices and monopolies and exclusive service suppliers, the Protocol says “State parties shall enhance such cooperation, inter alia, in accordance with mechanisms and initiatives arrived at under other SADC protocols” (Articles 12(3) and 19(5). “We have established technical committees that would meet on a common platform and discuss matters pertaining to competition in the region,” added Gaomab II.
The conclusion of the deal comes against this background and an earlier decision by the members to strengthen regional cooperation on competition issues.
In 2009, the members adopted the SADC declaration on regional cooperation in competition and consumer policies and mandated the establishment of a system for effective cooperation among the competition authorities of member states. It provides for the creation of a transparent framework with appropriate safeguards to protect confidential information. It also requires members to consider the principle to pursue case specific cooperation in preventing hard-core cartels, abuse of dominance, anticompetitive mergers and unilateral conduct.
This provided the framework and mandate for Competition Authorities within to negotiate and conclude the deal. To this effect, the deal describes the extent of cooperation and provides, inter alia, for the exchange of information and its confidentiality, cooperation and coordination in merger investigations and complaints, harmonisation (as far as possible) of rules and procedures for filing of mergers and applying for leniency or immunity; and the settlement of inter-agency disputes.
Confidente. Lifting the Lid. Copyright © 2015