Competition Law

October 22, 2021

Africa & International Trade Law

Friday to Saturday, 29-30 October 2021

 Virtual Conference 

To register, click here

The EU is often touted as providing an exemplary model for regional integration in the field of competition policy. It has indeed been successful in many ways – integrating diverse markets through strict anti-cartel laws, introducing an effective one-stop-shop merger regime in the 1990s, and tackling dominance steadfastly albeit less prolifically.However, given its experimentalist and ever-evolving nature, the EU competition regime is also bound to sometimes 'get it wrong'. In the author’s view, this statement holds true regarding the digital markets domain that was recently earmarked for regulation in the EU.

This blog post discusses the role of regional competition regimes (RCRs) in supporting international enforcement cooperation. The appetite for trade among nations has been insatiable over the past several decades. As cross-border trade and business transactions increased, there was also widespread adoption of competition laws and an increased number of competition enforcement authorities around the world, both at the national level and regional level. As a result, there has also been an increase in the cross-border nature of business conduct investigated by competition authorities.

This article ponders on the developments in the Southern African cooperation in competition enforcement through some of the regional economic instruments, namely, the 2002 Southern African Customs Union (SACU) Agreement, the 2004 Common Market for Eastern and Southern Africa (COMESA) Competition Regulations, the 2009 Southern African Development Community (SADC)[2] Declaration on regional cooperation in competition and consumer policies, and the African Competition Forum (ACF). In this regard, I briefly touch on the importance of regional cooperation in enforcing competition regulation, the challenges faced in the implementation of Southern African regional competition regimes (RCRs), and the reasons why these RCRs face these challenges.

This blog post illustrates the role of national competition agencies (NCAs) in enforcing regional-level competition laws in Africa. Generally, the journey to regional integration starts with action at the national level. Then, as countries enter discussions and negotiations, treaties or agreements are signed containing articles that spell out common interests between States.

While there is consensus about the importance of regional competition regimes towards realizing the economic benefits associated with regional market agreements, there are certainly multiple pathways that may be taken towards the regionalization of competition law and policy in any particular regional grouping. The exact path chosen will inevitably be led by the specific economic and geo-political circumstances in which the member states of the regional grouping operate. In the case of the ASEAN Economic Community, it is submitted that the most practical way forward is to take a “bottom-up” approach with two or more member states taking the lead to establish common ground in specific areas of competition law practice, particularly those that are of greater significance in cross-border transactions and investigations. The success of such smaller initiatives might encourage other members of the regional grouping to follow suit and, hopefully, participate in other “harmonization and convergence” reform efforts that will help ASEAN advance its single market aspirations.

There are numerous regional agreements among developing countries. They aim to tear down the trade and investment barriers between and among their members. Moreover, they adopt competition policy and free movement policy to free their internal markets of private and state restraints to achieve market integration, efficiency, opportunity, competitiveness, and a higher standard of living. But most of these regional arrangements do not live up to their potential. Competition policy lags. Why? Reasons commonly given include asymmetry of the member states and their interests, lack of funding and sources for it, large informal markets, governance not sympathetic to competition, and corrupt leadership of nations set on retaining power and privilege. But two critical elements are virtually always overlooked, and unless they are recognized and prioritized, the hope of the regional agreements will never be realized.

The WAEMU competition policy is, from the point of view of material and procedural law, in conformity with international standards, with certain specificities relating to the control of concentrations, the establishment of a special category of anti-competitive practices attributable to States and, above all, a centralized institutional approach with almost exclusive competence of the Community bodies. Then, eighteen (18) years (2003-2021) after the adoption of the implementing texts, WAEMU competition policy has therefore contributed to the consolidation of the Customs Union, the free movement of goods and liberalization in several sectors of activity (telecommunications, communication, energy, etc.). Moreover, it has become an essential tool for promoting regional economic integration in the Union.

While there are obvious gains in adopting a one-stop-shop approach as highlighted above, it is unclear whether it is realistic and to what extent it can apply. This results from the different individual needs of African countries at different developmental stages, as experience over time has shown that one size does not fit all in competition regulation.

Whatever their level of evolution in competition regulation, developing countries, particularly African countries except for a few rare success stories such as South Africa, need to interrogate their RCRs and national competition laws. Countries without a competition regime or law have the advantage of avoiding the Washington Consensus trap and forging a national competition law tailored to their development goals