On 31 October 2014, the COMESA Competition Commission published its 2014 Merger Assessment Guidelines. The guidelines provide much needed clarity on the interpretation of the COMESA Competition Regulations in so far as merger control is concerned.
Although South Africa is not a COMESA Member State, the COMESA Competition Regulations apply to all firms (including South African firms) “operating” in COMESA Member States. The COMESA Member States are: Burundi, Comoros, DRC, Djibouti, Egypt, Eritrea, Ethiopia, Kenya, Libya, Madagascar, Malawi, Mauritius, Rwanda, Seychelles, Sudan, Swaziland, Uganda, Zambia en Zimbabwe.
In terms of the new COMESA Merger Assessment Guidelines:
Even if a merger is not notifiable to the COMESA Competition Commission, always consider whether the merger must be notified to another competition regulator in Africa or elsewhere in the world.
Bear in mind that a “merger” occurs when one undertaking establishes direct or indirect “control” over the whole or part of the business of another undertaking. “Control” is not always a clear-cut concept in law and the assessment whether a merger is formally notifiable to the COMESA Competition Commission can be quite complex. It is important for specialist input to be obtained in each instance.