FAQs

Competition

What happens to mergers being evaluated by the competition regulators in the event of a lock down/ closure of the competition regulators?

Ethiopia - Mesfin Tafesse & Associates

To date, the Trade Competition and Consumer Protection Authority (TCCPA) has not issued any statement providing guidance on how merger assessments will be conducted in the event of a lockdown or a State of Emergency. In line with the government decision to keep only key personnel in government offices starting from 25 March 2020, the TCCPA remains functional. However, parties participating in a merger should envisage the possibility of merger evaluations by the TCCPA being delayed as a result of the decision. As a merger will not have any legal effect until it is notified to and approved by the TCCPA, any on-going applications or evaluation activities are likely to be suspended in the event of TCCPA’s closure.

Kenya - Anjarwalla & Khanna

As at 19th March, 2020, the CAK had not issued any statement providing guidance on how merger assessments will be conducted in the event of a lockdown. In addition, the CAK had not announced any expected closure of their offices. However, parties should envisage the possibility of merger evaluations by the CAK being delayed or completely stalled as a result of the ongoing COVID-19 pandemic given that following the Government of Kenya’s directive for institutions to seek to adopt remote working policies, a number of Governmental institutions have already adopted a remote working policy or a partial lockdown.

Fortunately, there is no requirement for mergers to be submitted to the CAK within a specific timeline after signing of the transaction agreements and therefore there is no impact on submission timelines. In addition, it should be noted that the CAK adopted an online electronic filing system for merger notifications and parties could therefore elect to file their merger notifications electronically during the COVID-19 period.

However, a partial or complete shut-down could result in significantly delayed timelines for approvals and therefore impact completion of transactions.

It should be noted that completion of a notifiable transaction prior to obtaining CAK is an offence punishable by a fine of up to KES 10 Million (approx. USD 100,000) and/or a penalty of up to 10% of the merging parties annual turnover and/or imprisonment of up to 5 years. In addition, the transaction would be void. Payment of a deposit of over 20% prior to obtaining CAK approval is equally prohibited.

Parties are therefore advised to file their merger notifications electronically (in the event that a manual filing is not feasible) and to await CAK approval prior to completing their transactions notwithstanding any delays occasioned by COVID-19. In the event of urgent transactions, parties could engage with the CAK officials to assess ways in which their merger approval could be expedited.

Malawi - Savjani & Co.

As at 3rd April 2020, the Competition and Fair Trading Commission (CFTC) had not issued any statement providing guidance on how merger assessments will be conducted in the event of a lockdown. In addition, the CFTC had not announced any expected closure of their offices. However, parties should envisage the possibility of merger evaluations by the CFTC being delayed or completely stalled as a result of the ongoing COVID-19 pandemic given the country’s declaration of a disaster and announcement of confirmed cases.

Fortunately, CFTC Merger Assessment Guidelines (CFTC Guidelines) confirm that there is no requirement for mergers to be notified to the CFTC within a specific timeline after signing of the transaction agreements and therefore there is no impact on submission timelines. The CFTC entertains applications for authorisation of mergers before as well as after closure of the transaction. However, when notification is to be made after closure, parties are advised to do so without undue delay.

A partial or complete shut-down could result in significantly delayed timelines for approvals. Merger applications can be made electronically but electronic applications must be accompanied by hard copies. The CFTC Guidelines indicate that the Commission will not process applications unless it has received hard copies of the application and all necessary accompanying information.
The CFTC Guidelines encourage parties to contact the CFTC before submitting an application for guidance. The CFTC then provides information to the parties on notification procedures as well as advice on how to structure the merger so that it does not raise possible competition concerns.

The CFTC Guidelines are available here.

Mauritius - BLC Robert & Associates

As at 26th March, 2020, the CCM had not issued any statement providing guidance on how merger assessments will be conducted in the event of a lockdown. However, parties should envisage the possibility of merger evaluations by the CCM being delayed or completely stalled as a result of the ongoing lockdown in Mauritius as a precautionary measure against COVID-19 pandemic.

Fortunately, the Competition Act 2007 (the ‘Act’) does not provide for notifications or approvals to be obtained from the CCM prior to a merger. The Act enables a party to a merger to apply for guidance as to whether the proposed merger will result in a substantial lessening of the market. 

Although not mandatory, notifying before completion of the transaction brings several benefits like certainty to the transaction The transaction can be tailor made taking into account concerns of the CCM, the cost of implementing remedies of the CCM is lower before completion of the transaction and following the guidance of the Commission, informed decisions can be taken.

The CCM is expected to complete its merger assessment within 30 working days after the receipt of the notification and in the case of a detailed assessment it should not exceed six months. However, the response of the CCM may be delayed due to the lockdown in Mauritius.
Note that the CCM has power to investigate completed mergers and has its own mechanism to detect mergers which have not been notified.

Morocco - BFR & Associés

As at 24th March 2020, the the Competition Authority of Morocco (the CAM) had issued statement providing special measures due to the COVID-19. The CAM has set up measures to guarantee the continuity of its activities of public service necessary for the functioning of the Moroccan economy.

Following the Moroccan Government’s directive, the CAM adopted remote working policies and partial lockdown. This new working method could significantly delay timelines for approvals and therefore impact completion of transactions.

Moreover, it should be noted that the CAM adopted an online electronic filing system and parties must therefore file their merger notifications electronically during the COVID-19 period.

Therefore, parties are advised to file their merger notifications electronically and to await CAM approval prior to completing their transactions notwithstanding any delays occasioned by COVID-19. With regard to urgent transactions, parties could engage with the CAM officials to assess ways in which their merger approval could be expedited.

Please note that under Moroccan competition law, mergers must be submitted to the CAM within a specific timeline prior to the signing of the transaction agreements and therefore this may have an impact on submission timelines.

It should be noted that completion of a notifiable transaction prior to obtaining CAM approval is an offence punishable by a penalty. The maximum payment amount would be 5% of their tax-free turnover in Morocco and for natural persons, to Five Million Dirhams. 

The CAM continues to operate and we have been receiveing authorization.

Nigeria - G.Elias & Co.

All merger notifications and requests for approval of mergers are to be filed at the FCCPC office in Abuja or at the Securities and Exchange Commission’s Interim joint merger review desk in Abuja or Lagos. (These two Commissions currently do merger control review work together, for a transitional period, with the FCCPC to do the work solely once it is fully staffed for the purpose.) Both Abuja and Lagos are currently locked down.

Parties should expect delays in merger evaluations by the FCCPC as a result of the ongoing pandemic given the directive of the Federal Government of Nigeria dated 24 March 2020 that all public servants should work remotely. Further to that directive, governmental institutions have already adopted the remote working practice. The lockdown will result in significantly delayed timelines for regulatory approvals and therefore impact completion timelines of transactions.

The FCCPC has not issued any statement providing guidance on how merger assessments will be conducted in the current lockdown situation. However, parties can file applications and notifications through the FCCP’s online platform and designated e-mails.

In addition, the Securities and Exchange Commission (SEC) in its circular dated 24 March 2020 stated that filings for mergers and acquisition applications should be made electronically to offerapplications@sec.gov.ng. The requirement for filing with the SEC is only applicable to public companies.

Parties are therefore advised to file their merger notifications using the electronic option. Since the FCCPC officials are working from home (with the attendant uncertainties and difficulties this may warrant), it is expected that merger approvals would still be obtained eventually. In any event, it is important for parties to await the FCCPC’s approval prior to completing any proposed merger or acquisition, notwithstanding any delays that may be occasioned by the COVID-19 pandemic. For really urgent transactions, parties could explore further available means to directly engage with the FCCPC and SEC officials so as to chart possible ways to expedite the obtention of the requisite approvals.

Tanzania - A&K Tanzania

As at 27 March 2020, the Tanzania Fair Competition Commission (FCC) had not issued any statement providing guidance on how merger assessments will be conducted in the event of a lockdown. In addition, the FCC had not announced any expected closure of their offices and at present the FCC’s offices remain “open for business” and they continue to receive and process applications. However, parties should envisage the possibility of merger evaluations by the FCC being delayed as a result of the general impact of the ongoing COVID-19 pandemic on efficiency in administration.

Fortunately, there is no requirement for mergers to be submitted to the FCC within a specific timeline after signing of the transaction agreements and therefore there is no impact on submission timelines.

A partial or complete shut-down could result in significantly delayed timelines for approvals and therefore impact completion of transactions.

It should be noted that completion of a notifiable transaction prior to obtaining FCC approval is an offence punishable by a fine of up to two (2) times the monetary value placed on the damage caused by such offence, and/or a penalty of up to 10% of the merging parties’ global annual turnover. In addition, the FCC can issue orders (anytime within 3 years of the merger) requiring the disposition of some or whole of the shares acquired as part of the merger or declare the transaction void.

Parties are therefore advised to file their merger notifications in hard copy (or electronically, if the service becomes available) and to wait for FCC approval prior to completing their transactions, notwithstanding any delays occasioned by COVID-19. In the event of urgent transactions, parties could engage with the FCC officials to assess ways in which their merger approval could be expedited.

Uganda - MMAKS Advocates

Uganda has no local competition/antitrust legislation except for sector specific antitrust laws for instance in the telecommunications, financial services, insurance and energy sectors. Uganda is however bound by the COMESA (Common Market for East and Southern Africa) Regulations, which were localised under the COMESA Treaty (Implementation) Act 2017. This treaty gives the COMESA Regulations the force of law in Uganda and accordingly requires the reporting of certain transactions to the COMESA Competition Commission.

Zambia - Musa Dudhia & Co.

As at 26 March, 2020, the Competition and Consumer Protection Commission (the CCPC) had not issued any statement providing guidance on how merger assessments will be conducted in the event of a lockdown. In addition, the CCPC had not announced any expected closure of their offices. However, parties should envisage the possibility of merger evaluations by the CCPC being delayed or completely stalled as a result of the ongoing COVID-19 pandemic .given that Ffollowing the Government of Zambia’s circular directive for institutions to seek to adopt remote working policies, a number of Governmental institutions have already adopted a remote working policy or a partial lockdown.

Fortunately,While there is no requirement for mergers to be submitted to the CCPC within a specific timeline after signing of the transaction agreements and therefore there is no impact on submission timelines.

However, Aa partial or complete shut-down could result in significantly delayed timelines for approvals and therefore impact completion of transactions.
It should be noted that completion of a notifiable transaction prior to obtaining CCPC approval is an offence and could result in by a fine of up to 10% of turnover. In addition, the transaction is null and void.

COMESA -

The COMESA Competition Commission (the Commission) is still carrying out merger evaluation of merger notifications made to the Commission. However, the Commission has advised that the timelines for merger evaluation of some merger may be extended beyond the 120 days prescribed timeline due to the on-going COVID-19 pandemic.

It is important to note that the COMESA competition regime is not suspensory and as such, parties can complete before receiving merger approval (however, note our comments below on the requirement to notify within 30 days of entering into legally binding agreements). In addition to this, parties should consider the risk of conditions being imposed on a merger by the Commission and the potential implications of this on a completed transaction.

UAE - Anjarwalla Collins & Haidermota

As at 11 May 2020, the MOE has not issued any statement providing guidance on how merger assessments will be conducted in the event of a lockdown. In addition, the MOE has not announced any expected closure of their offices. However, parties should envisage the possibility of merger evaluations by the Competition Department of the MOE being delayed or completely stalled as a result of the ongoing COVID-19 pandemic given that following the UAE Government’s directive for institutions to seek to adopt remote working policies, a number of Governmental institutions have adopted a remote working policy or a partial lockdown.

In the event that a transaction results in a dominant position or economic integration, the MOE’s approval should be sought before the transaction can be completed. An application form including the draft sale and purchase agreement is submitted following which the MOE is allowed a period of ninety (90) days to grant approval or reject the transaction. Therefore, a partial or complete shut-down of the MOE could result in significantly delayed timelines for approvals and therefore impact completion of transactions.

It should be noted that completion of a notifiable transaction prior to obtaining approval from the MOE is an offence punishable by a penalty of up to 2% to 5% of the merging parties’ annual turnover. In addition, the continued violation by the merging entities permits the MOE to impose a fine of from UAE Dirhams Five Hundred Thousand (AED 500,000.00) to UAE Dirhams Five Million (AED 5,000,000.00).

Parties are therefore advised to obtain the relevant information from the MOE prior to entering into any transaction documents in respect of the merger and/or acquisition.

How will merger applications be submitted to the competition regulators in the event of a lock down/ closure of the competition regulators?

Ethiopia - Mesfin Tafesse & Associates

The Trade Competition and Consumer Protection Authority (TCCPA) is yet to issue a statement providing guidance on how merger assessments will be submitted in the event of a lockdown. Applications may continue to be submitted if TCCPA arranges an online review platform.

Kenya - Anjarwalla & Khanna

The CAK is yet to issue a statement providing guidance on how merger assessments will be submitted in the event of a lockdown. Notwithstanding, it is worth noting that the CAK launched an online platform for e-filing of mergers in February 2020 which provides an alternative way of submitting merger applications (which are generally in practice submitted in hard copy).

Malawi - Savjani & Co.

The the Competition and Fair Trading Commission (CFTC) is yet to provide guidance on how merger assessments will be submitted in the event of a lockdown.

Mauritius - BLC Robert & Associates

The CCM is yet to issue a statement providing guidance on how requests for merger guidance should be submitted in the event of a lockdown.

Morocco - BFR & Associés

The CAM has indicated that manual filing of documents will no longer be allowed. All documents, including merger applications are to be submitted by e-mail through secretariat.general@conseil-concurrence.ma

The original forms of these documents must be made available at the request of the Council’s Investigation Services. Hearings sessions may be organized either by video-conference via Google’s Hangouts Meet module, either by electronic mail exchange or any other means of remote communication in order to enable instructional services of the CAM to carry out the necessary due diligence for the processing of such documents.

Nigeria - G.Elias & Co.

The FCCPC is yet to issue a statement providing guidance on how merger notifications will be submitted and prosecuted in this event of a lockdown. However, companies can submit the merger applications online through the FCCPC online platform and designated emails. The Securities and Exchange Commission (SEC) in a circular dated 24 March 2020 stated that filings of mergers and acquisition applications should be made electronically at offerapplications@sec.gov.ng. For now, the SEC is authorised to act as the agent of the FCCPC on most aspects of merger control matters.

Tanzania - A&K Tanzania

The FCC is yet to issue a statement providing guidance on how merger assessments are to be submitted in the event of a lockdown.

Although the Competition Rules, 2018 provide that in addition to submitting merger applications in hard copy they also need to be filed electronically, the online portal has not yet been activated. Accordingly, until the FCC provides further guidance on electronic filing, the only channel for submission remains hard copy.

Zambia - Musa Dudhia & Co.

The CCPC is yet to issue a statement providing guidance on how merger assessments will be submitted in the event of a lockdown. Notwithstanding, although While not formally recognised as a filing method, the CCPC has in the past accepted electronic filing of mergers and this is likely to be instituted as an acceptable method of filing.

COMESA -

The Commission has published a notice clarifying how mergers will be handled by the Commission in light of the COVID-19 pandemic. These clarifications include:

  1. e-filing of mergers: Parties are encouraged to electronically submit their merger notifications (e-mails) during these period and they are not expected to submit the hardcopies within 7 days after making the e-filing; and
  2. failure to make complete merger notification within 30 days of decision: Parties will not be penalised if they are not able to submit the complete merger notification within 30 days of the decision to merge provided they have started  engaging the Commission. The initial engagement with the Commission will be considered as the start of the notification process with this being finalised once all the information and documents are provided to the Commission.

UAE - Anjarwalla Collins & Haidermota

The MOE has formed a Competition Department. However, as at 11 May 2020, no guidance has been provided from the MOE in relation to the filing or processing of merger notifications and applications.

As such, it would be advisable for merging parties to seek clarifications from the MOE or its online portal prior to entering into any transactions that affect economic integration and market dominance.

What kind of conduct in business is prohibited and is likely to attract investigations or imposition of sanctions by the competition authority during this period of COVID-19?

Ethiopia - Mesfin Tafesse & Associates

Since the outbreak of COVID19, demand for some essential medical and other consumable products has skyrocketed. The government has been suspending businesses that have increased prices as a result of increase in demand. The State of Emergency Regulation No. 03/2020 provides that special benches and court procedures will be set up in order to handle cases related to price increments and product hoarding as per the applicable competition and criminal laws.

Kenya - Anjarwalla & Khanna

  1. Restrictive Trade Practices
    The Competition Act generally prohibits agreements, concerted practices or decisions by undertakings which have as their object or effect the prevention or lessening of competition in trade (Restrictive Trade Practices). These include:

    1. Cartels
    2. Price fixing e.g a supplier dictating the prices at which retailers must sell to their customers;
    3. dividing markets by allocating customers, suppliers, areas or specific types of goods or services;
    4. collusive tendering; or
    5. any other conduct that would otherwise prevent, distorting or restricting competition. This could include exorbitant increases in prices, particularly for essential goods, hoarding of products etc

  2. Abuse of Dominance e.g. an entity that controls a large percentage of the market applying exploitative conduct in the market when dealing with customers or suppliers

  3. Abuse of Buyer Power provisions – for instance if an entity in a position of a purchaser holds a position of influence and exerts this against suppliers to obtain from the suppliers more favourable terms that they would ordinarily have been entitled to.

Breach of the above provisions is an offence punishable by a fine of up to KES 10 Million (approx. USD 100,000) and/or a penalty of up to 10% of the merging parties annual turnover and/or imprisonment of up to 5 years. In addition, the CAK has powers to issue any other orders as they consider appropriate.

Malawi - Savjani & Co.

  1. Anti-Competitive Trade Practices
    The Competition and Fair Trading Act, 1998 generally prohibits agreements, decisions and concerted practices which are likely to result in prevention, restriction or distortion of competition to an appreciable extent in Malawi or in any substantial part of it (Anti-Competitive Trade Practices). These include:
    1. predatory behaviour towards competitors including the use of cost pricing to damage, hinder or eliminate competition;
    2. discriminatory pricing and discrimination, in terms and conditions, in the supply or purchase of goods or services;
    3. imposing restrictions where or to whom or in what form or quantities of goods supplied or other goods that may be sold or exported; or
    4. trade agreements fixing prices between persons engaged in the business of selling goods or services.

  2. Trade Agreements between enterprises engaged in rival or potentially rival activities. Prohibited agreements include:
    1. Price collusion whereby a uniform price is set in order to eliminate competition;
    2. collusive tendering and bid-rigging;
    3. market or customer allocation agreements; or
    4. concerted refusals to supply goods or services to potential purchasers
  3. Anti-competitive trade practices by associations – for instance unjustifiable exclusion from a trade association of any person carrying on or intending to carry on in good faith the trade in relation to which the association is formed.
  4. Misuse of market power – any person that has a dominant position of market power cannot use that power to eliminate a competitor, prevent entry into the market or deter a person from engaging in competitive conduct.
  5. Unfair trading – this denotes various types of conduct in relation to consumers, including:
    1. Excluding liability for defective goods;
    2. Making misleading warranties when supplying goods or services- e.g. falsely representing that the goods are of a new or specified age ;
    3. Engaging in unconscionable conduct in carrying out trade in goods or services;
    4. engaging in pyramid selling of goods and services;
    5. engaging in bait selling;
    6. offering  gifts or prizes with no intention of supplying them; and
    7. putting out an advertisement which is misleading or deceptive

Breach of the above provisions is an offence punishable by a fine of MK 500,000 (approximately US$ 679.00) or of an amount equivalent to the financial gain generated by the offence, if such amount be greater, and to imprisonment for five (5) years.

Further, any person who suffers injury, loss or harm as a result of any agreement, arrangement, undertaking, act or omission which is prohibited under the Competition and Fair Trading Act may recover damages by way of civil proceedings in the High Court from the person responsible for any such agreement, arrangement, undertaking, act or omission.

Mauritius - BLC Robert & Associates

Restrictive Trade Practices

  1. Horizontal Agreements: Section 41 of the Act prohibits agreements or a provision of such agreements between enterprises that supply goods or services of the same description, or acquire goods or services of the same description, which have the object or effect of significantly preventing, restricting or distorting competition
  2. Bid Rigging: Under section 42 of the Act, an agreement shall be prohibited and void where one party to the agreement:
    1. agrees not to submit a bid or tender in response to an invitation for bids or tenders; or
    2. agrees upon the price, terms or conditions of a bid or tender to be submitted in response to such a call or request.
  3. Vertical Agreements Involving Resale Price Management: According to section 43 of the Act, a vertical agreement between enterprises shall, to the extent that it involves resale price maintenance, be prohibited and void.
  4. Non-Collusive Horizontal Agreements: A horizontal agreement that is not collusive under section 41 of the Act may be reviewed by the CCM  where -
    1. the parties to the agreement together supply 30 per cent or more, or acquire 30 per cent or more, of goods and services of any description on the market; and
    2. the CCM has reasonable grounds to believe that the agreement has the object or effect of preventing, restricting or distorting competition.
  5. Other Vertical Agreements: Section 45 of the Act provides that a vertical agreement that does not involve resale price maintenance may be reviewed where the Commission has reasonable grounds to believe that one or more parties to the agreement is or are in a monopoly situation that is subject to review under section 46 of the Act.
  6. Monopoly Situation: Under section 46 of the Act, a monopoly situation exists when the supply of goods or services of any description are supplied or acquired on the market by:
    1. one enterprise supply 30% or more of those goods and services; or
    2. 3 or fewer enterprises supply 70% or more of those goods and services.

The Act empowers the CCM to review a monopoly situation, where the conduct of an enterprise or group of enterprises is likely to prevent, restrict or distort competition or in any other way constitute an exploitation of the monopoly situation.  The CCM can impose structural and behavioural remedies against the abuse of a monopoly situation.

Being in a monopoly position is not a breach in itself. It is the abuse of the monopoly situation that constitutes to be a breach of the Act. The CCM can intervene if:

  1. market share thresholds are met,
  2. the enterprise(s) has (have) a position of dominance,
  3. the conduct of the enterprise restricts, prevents or distorts competition or otherwise exploits the monopoly situation,
  4. the conduct has or is likely to have “an adverse effect on the efficiency, adaptability and competitiveness of the economy of Mauritius, or are likely to be detrimental to the interests of consumers.

Morocco - BFR & Associés

Law No. 104-12 relating to freedom prices and competition (the Competition Act) prohibits the following anticompetitive practices:

  1. Restrictive trade practice;
    • Concerted acts, agreements or coalitions expressed or implied. Such agreements shall be prohibited where they have the object or may have the effect of preventing, restricting or distorting competition in the market.
    • Restrictive actions will, for instance, consist in:
    • limiting access to the market or free exercise of competition by 'other undertakings;
    • hindering price fixing by the free competition of the market by artificially favouring their increase or decrease to limit or control production, outlets, investments or technical progress.
  2. Abuse of dominance;
    • prohibition of abusive exploitation of a dominant position in the market;
    • prohibition of abuse of a situation of economic dependence in which a customer or supplier has no other equivalent alternative.
  3. Unreasonably low price;
    The Competition Law prohibits offers of prices that are unreasonably low in relation to the costs of production, processing and marketing, where such offers or practices have the objet or may have the effect of eliminating a market, or preventing access to a market, a company or one of its products.

    Breach of the above provisions is an offence punishable by a fine of up to MAD 500,000 and one year imprisonment against any "natural person who, fraudulently or knowingly, has taken a personal and decisive part in the design, organization, implementation or control of practices" of agreements or abuse of dominance.

    In addition, the CAM may self-regulate or be called upon to investigate and, where appropriate, impose interim measures, periodic penalty payments, injunctions or monetary penalties.

Nigeria - G.Elias & Co.

Below is a summary of the kinds of business conduct that may attract an investigation from the FCCPC during this period of COVID-19:

  1. Restrictive Trade Practices - The Act prohibits agreements among actors (whether companies, individuals, partnerships lacking juristic personality or otherwise) that have the actual or likely effect of preventing, restricting, or distorting competition (Restrictive Trade Practices/Agreements).
    These prohibited practices include:
    1. directly or indirectly fixing a purchase or selling price for goods and services;
    2. dividing markets by allocating customers, suppliers, areas or specific types of goods or services;
    3. limiting or controlling the production or distribution of any goods and services, markets, technical development or investment;
    4. engaging in collusive tendering;
    5. making the conclusion of an agreement subject to an acceptance by other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such agreement; and
    6. any other conduct that would otherwise prevent, distort or restrict competition.  Restrictive trade agreements could also include agreements with exorbitant increases in prices, particularly for essential goods, for the hoarding of products, for minimum retail price maintenance and for the withholding of products by a dealer from a supplier.
  2. Abuse of Dominance - An actor is considered to be in a dominant position if it:
    1. is able to act without taking account of the reaction of its customers or competitors; or
    2. enjoys a position of economic strength enabling it to prevent effective competition being maintained and having the power to behave, to an appreciable extent, independently of its competitors and consumers.

      Such acts include –
      1. charging an excessive price to the detriment of customers;
      2. refusing to give a competitor access to an essential facility when it is economically feasible to do so;
      3. engaging in an exclusionary act like refusing to supply scarce goods to a competitor when supplying those goods is economically feasible or buying up a scarce supply of intermediate goods or resources required by a competitor;
      4. unreasonably lessening competition in the market; and
      5. impeding the transfer of technology.
  3. Monopoly – This may also occur in situations of import and export of goods and services of any description from Nigeria to the extent that it affects competition in the Nigerian market, as may be prescribed in regulations made by the FCCPC.

If the FCCP finds that an actor is abusing its dominant position in the market, the FCCPC is required to prepare a report indicating the practices that constitute the abuse and notifying the actor of its findings as well as making any other orders that it considers appropriate to get the actor to immediately cease the abusive practice.

An actor that abuses its dominant position in the market commits an offence and is liable on conviction to a fine of not less than ten percent (10%) of its turnover in the business year preceding the date of the commission of the offence or such other percentage as the court may determine under the circumstances of the particular case.

An actor who, after receiving the order of the commission, fails to cease the abusive practice, commits an offence and is liable on conviction to a fine of not less than ten per cent (10%) of its turnover in the business year preceding the date of the commission of the offence or such other percentage as the court may determine under the circumstances of the particular case.

Furthermore, any director of the actor that fails to cease an abusive practice under the Act is liable on conviction to imprisonment for a term not exceeding three (3) years or to the payment of a fine of not exceeding N50, 000,000.00 or to both the fine and imprisonment.

Tanzania - A&K Tanzania

Restrictive Trade Practices

The Fair Competition Act generally prohibits agreements, concerted practices or decisions by undertakings which have as their object or effect the prevention or lessening of competition in trade (Restrictive Trade Practices). These include:

  1. Cartel-like behaviour;
  2. Price fixing between competitors or down the chain of production, e.g., a supplier dictating the prices at which retailers must sell to their customers;
  3. Dividing markets by allocating customers, suppliers, areas or specific types of goods or services;
  4. Collusive tendering; or
  5. Engaging in unconscionable conduct in the course of trade or any other conduct that would otherwise prevent, distort or restrict competition. This could include exorbitant increases in prices, particularly for essential goods, hoarding of products etc.

Abuse of Dominance g., an entity that controls a large percentage of the market applying exploitative conduct in the market when dealing with customers or suppliers.

Breach of the above provisions is an offence punishable by a fine of up to two (2) times the monetary value placed on the damage caused by such offence, and/or a penalty of up to 10% of the merging party’s global annual turnover. In addition, the FCC has powers to issue any other orders as they consider appropriate.

Uganda - MMAKS Advocates

Uganda has no competition/antitrust legislation except for sector specific antitrust laws, for instance in the telecommunications, financial services, insurance and energy sectors, which are discussed below and would be investigated irrespective of the COVID-19 circumstances.

Telecommunications
Licensees providing communication services under the Communications Act 2013 (an "operator") are not to engage in any activities, whether by act or omission, which have, or are intended to or likely to have, the effect of unfairly preventing, restricting or distorting competition in relation to any business activity relating to communication services, including effecting anti-competitive changes in the market structure and, in particular, anti-competitive mergers and acquisitions in the communications sector.

Financial Institutions
Under the Financial Institutions Act 2004, a notice of no objection of the Bank of Uganda is required for the allotment, issue transfer or registration of transfer of 5% of the shares of a financial institution, or the acquisition of control of a financial institution.

Insurance
The Insurance Act 2017 precludes a person from becoming a significant owner of a licensee without the prior written approval of the Insurance Regulatory Authority (IRA). Similarly, a person who is a significant owner of a licensee shall not, except with the prior written approval of the IRA, significantly increase or reduce their control over the licensee or cease to be a substantial shareholder of the licensee. A “significant owner” is defined to mean a person who exercises control over a licensed insurance company.

Energy
Licensees under the Electricity Act 1999 are restricted from transferring their license without the written consent of the Electricity Regulatory Authority. “Transfer of license” under this act includes the acquisition of control by the license holder while “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management of that person, whether through the ownership of shares, voting, securities, partnership or other ownership interests, agreements or otherwise.

Zambia - Musa Dudhia & Co.

  1. Restrictive Trade Practices- The Competition Act generally prohibits agreements, concerted practices or decisions by undertakings which have as their object or effect the prevention or lessening of competition in trade (Restrictive Trade Practices). These include:
    1. Cartels
    2. Price fixing e.g.for instance a supplier dictating the prices at which retailers must sell to their customers;
    3. dividing markets by allocating customers, suppliers, areas or specific types of goods or services;
    4. collusive tendering; or
    5. any other conduct that would otherwise prevent, distorting or restricting competition. This could include exorbitant increases in prices, particularly for essential goods, hoarding of products etc.
  2. Abuse of Dominance- e.g.for instance an entity that controls a large percentage of has a dominant position in the market applying exploitative conduct in the market when dealing with customers or suppliers.
  3. Abuse of Buyer Power provisions - for instance if where an purchasing entity in a position of a purchaser holds a position ofin a position of influence and exerts thisit’s influence against suppliers to obtain from the suppliers more favourable terms that they would ordinarily have been entitled to.

More specifically tThe CCPC issued a statement on 23 March 2020 in which the CCPC cautioned businesses against excessive pricing of sanitary products meant for the prevention of COVID-19. Tthe CCPC advised it hashaving conducted preliminary investigations and noted foundthe excessive pricing of sanitary products in the relevant markets. In this context, the CCPC has advised that the powers of the CCPC extend to, inter alia, reviewing the trading practices pursued by enterprises doing business in Zambia, investigating unfair trading practices and unfair contract terms. Breach of the above provisions is an offence punishable by a fine of up to 10% of the merging parties’ annual turnover or imprisonment of up to 5 years in the case of cartel conduct. In addition, the CCPC has powers to issue any other orders as they it considers appropriate.

COMESA -

Similar to Kenya’s and Tanzania’s competition regime, the COMESA competition regime prohibits restrictive business practices (cartels (horizontal restraint) and vertical restraints) and abuse of dominance which are practices likely to arise during this period. Examples of these restraints are set out under the Kenya and Tanzania heading.

If the Commission finds that an entity is in breach, it may impose financial penalty up to a maximum monetary penalty of USD 750,000 for engaging in cartel behaviour and/or USD 300,000 for engaging in restrictive trade practices.

UAE - Anjarwalla Collins & Haidermota

Restrictive Trade Practices
Federal Law No. 4 of 2012 relating to the Regulation of Competition (UAE Competition Law) generally prohibits agreements, concerted practices or decisions by undertakings which have as their object or effect the prevention or lessening of competition in trade (Restrictive Trade Practices). These include:

  1. cartels;
  2. price fixing;
  3. dividing markets by allocating customers, suppliers, areas or specific types of goods or services;
  4. collusive tendering; or
  5. any other conduct that would otherwise prevent, distort or restrict competition. This could include exorbitant increases in prices, particularly for essential goods, hoarding of products, etc.

Abuse of Dominance
For example, where an entity that controls a large percentage of the market applies exploitative conduct in its dealings with customers or suppliers.

Abuse of Buyer Power provisions
For instance whre a buyer in a position of influence exerts it against suppliers to obtain from the suppliers more favourable terms that they would ordinarily have been entitled to.

Breach of the above provisions is an offence under UAE Competition Law. However, the MOE is yet to issue guidelines on the fines, penalties and/or sanctions that will be applicable in the event of such breach by merging entities.

Will coordinated or even unilateral efforts by entities to mitigate and suppress the COVID-19 pandemic prompt competition law scrutiny? e.g information sharing of competition sensitive information such as future prices, volume of stock available, co-operation in delivery of supplies to remote areas if shops are closed down etc.

Ethiopia - Mesfin Tafesse & Associates

Yes. The Competition Proclamation generally prohibits agreements, concerted practices or decisions by undertakings which have, as their object or effect, the prevention or lessening of competition in trade (Anti-Competitive Trade Practices). Certain particularly harmful agreements, such as agreements among competitors to fix prices, rig bids, or allocate markets, are unlawful per se. Others are evaluated based on their effects on competition. The State of Emergency Regulation No. 03/2020 provides that the government may, as part of the COVID-19 response, order companies to alter or increase their normal production or sell products at a certain price.

Kenya - Anjarwalla & Khanna

The Competition Act generally prohibits agreements, concerted practices or decisions by undertakings which have as their object or effect the prevention or lessening of competition in trade (Restrictive Trade Practices). Certain particularly harmful agreements, such as agreements among competitors to fix prices, rig bids, or allocate markets, are unlawful per se. Others are evaluated based on their effects on competition. However, the Competition Act does permit undertakings to apply to the CAK for exemptions from the provisions prohibiting Restrictive Trade Practices. In determining an application for exemption the CAK considers amongst other factors whether the Restrictive Trade Practice is likely to result in obtaining a benefit for the public which outweighs or would outweigh the lessening in competition or prevent the decline in the production or distribution of goods or the provision of services.

Alternatively, the Government may also suspend the provisions of the Competition Act if a state of emergency is declared. This suspension would allow firms to co-ordinate with the aim of mitigating the COVID-19 pandemic and its economic, health and social effects on Kenya.

Malawi - Savjani & Co.

The Competition and Fair Trading Act generally prohibits agreements, decisions and concerted practices which are likely to result in prevention, restriction or distortion of competition (Anti-Competitive Trade Practices). However, the Competition and Fair Trading Act does permit the Competition and Fair Trading Commission (CFTC) to authorise any act, agreement or understanding which is not prohibited outright by the Act if that act, agreement or understanding is consistent with the objectives of the Act.

The objectives of the Competition and Fair Trading Act include:

  1. to encourage competition in the economy by prohibiting anti-competitive trade practices;
  2. to regulate and monitor monopolies and concentrations of economic power;
  3. to protect consumer welfare;
  4. to strengthen the efficiency of production and distribution of goods and services;
  5. to secure the best possible conditions for the freedom of trade; and
  6. to facilitate the expansion of the base of entrepreneurship.

Nevertheless, the Act specifically prohibits the CFTC from authorising trade agreements, misuse of market power and unfair trading.

Alternatively, the Government may also suspend the provisions of the Competition and Fair Trading Act as part of preventative measures to be employed during the country’s state of disaster. We are currently awaiting further announcement of such measures.  Such suspension could allow firms to co-ordinate with the aim of mitigating the negative impact of COVID-19 pandemic in Malawi.

Mauritius - BLC Robert & Associates

The Act generally prohibits agreements, concerted practices or decisions by undertakings which have as their object or effect the prevention or lessening of competition in trade. Certain particularly harmful agreements, such as agreements among competitors to fix prices, share markets, rig bids, or allocate markets, are unlawful per se. Others are evaluated based on their effects on competition. In terms of exemption, the Act does not apply to petroleum products and the liquid petroleum gas.

Morocco - BFR & Associés

Law No. 104-12 relating to freedom prices and competition generally prohibits agreements, concerted practices or decisions by undertakings, which have as their object or the effect of preventing or reducing competition in trade (Restrictive Trade Practices). Certain particularly harmful agreements such as agreements among competitors to fix prices, rig bids or allocate markets are unlawful. Others are evaluated based on their effects on competition.

Article 9 of Law No. 104-12 relating to freedom prices and competition permit undertakings to apply for exemptions from the provisions prohibiting Restrictive Trade Practices. In determining an application for exemption, the CAM considers amongst other factors, whether the Restrictive Trade Practice is likely to result in obtaining a benefit for the public (or contribute to the development of economic and/or technical progress) which outweighs or would outweigh the reduction in competition or prevent the decline in the production or distribution of goods or the provision of services.

The Moroccan Government has not yet rendered a decision on this issue.

Nigeria - G.Elias & Co.

Yes. Coordinated or unilateral efforts by entities to mitigate or suppress the COVID-19 pandemic may raise competition law scrutiny where the acts violate the provisions of the competition law such as where the entities engage in restrictive trade practices or enter into contracts to do so.

However, Section 60 of the Act provides for situations where the FCCPC may grant an exemption and approve of a restrictive trade practice agreement among actors. This may be done where the FCCPC is satisfied that the agreement will contribute to the improvement of production or distribution of goods, services or the promotion of technical or economic progress. The FCCPC has so far not exercised this power in respect of any efforts to address the pandemic. However, any party seeking exemptions under s. 60 of the Act may apply to the FCCPC for it to exercise the powers.

Tanzania - A&K Tanzania

The Fair Competition Act generally prohibits agreements by undertakings which have as their object or effect the appreciable prevention or lessening of competition in trade (Restrictive Trade Practices). Certain particularly harmful agreements, such as agreements among competitors to price fix, collusive bidding and tendering, or collective boycott are unlawful per se. Others are evaluated based on their effects on competition. However, the Fair Competition Act does permit undertakings to apply to the FCC for exemptions from the provisions prohibiting Restrictive Trade Practices. In determining an application for exemption, the FCC considers amongst other factors whether the Restrictive Trade Practice is likely to result in obtaining a benefit for the public which outweighs or would outweigh the lessening in competition or prevent the decline in the production or distribution of goods or the provision of services.

Alternatively, the Government may also suspend the provisions of the Fair Competition Act if a state of emergency is declared. This suspension would allow firms to co-ordinate with the aim of mitigating the COVID-19 pandemic and its economic, health and social effects on Tanzania.

Uganda - MMAKS Advocates

This is not likely to happen at a national level considering that Uganda does not have a competition authority. However, from a sector specific perspective, the regulator of telecommunications in Uganda could scrutinise activities by operators to ensure they are not engaging in anti-competitive behaviour in breach of the Uganda Communications (Competition) Regulations, 2019. These regulations state that an operator, consumer or authorised person shall be taken to have engaged or be engaged in anti-competitive act, if, by commission or omission, that act has an appreciable effect on fair competition in the communications market.

Zambia - Musa Dudhia & Co.

The Competition Act generally prohibits agreements, concerted practices or decisions by undertakings which have as their object or effect the prevention or lessening of competition in trade (Restrictive Trade Practices). Certain particularly harmful agreements, such as agreements among competitors to fix prices, rig bids, or allocate markets, are unlawful per se. Others are evaluated based on their effects on competition.

However, tThe Competition Act does permits undertakings to apply to the CCPC for exemptions from the provisions prohibiting Restrictive Trade Practices. In determining an application for exemption the CCPC considers amongst other factors whether the Restrictive Trade Practice is likely to result in obtaining a benefit for the public which outweighs or would outweigh the lessening in competition or prevent the decline in the production or distribution of goods or the provision of services.

Alternatively, tThe Government may also suspend the provisions of the Competition Act if a state of emergency is declared. This suspension would allow firms to co-ordinate with the aim of mitigating the COVID-19 pandemic and its economic, health and social effects on Zambia

COMESA -

Unilateral efforts by entities may be considered as restrictive trade practices particularly where competitors are involved in such practices leading to the conclusion that there is collusion to fix certain aspects of the market for example, the price of goods.

Similar to Kenya and Tanzania, the COMESA competition regime prohibits restrictive trade practices and applies an ‘object or effect’ test in determining whether an agreement or arrangement is a restrictive practice. This means that the mere existence of a restriction in an agreement or arrangement suffices to establish breach of the regime and it is immaterial whether such a restriction has been enforced or not.

Unfortunately, the COMESA competition regime is silent on whether the competition regime is suspended in the case of a pandemic or other calamity and hence, the provisions of the COMESA competition regime remain in full force with restrictive trade practices being prohibited.

Can undertakings unilaterally refuse to deal with a firm that fails to adopt adequate measures to protect workers and customers, or a firm that promotes misinformation that may exacerbate the public health risks?

Ethiopia - Mesfin Tafesse & Associates

If the undertaking is one that has a dominant market position, refusing to deal with a firm requires a justifiable economic reason. Maintenance of safety and quality of services and goods qualifies as a justifiable economic reason. Therefore, if the undertaking can prove that the failure to adopt adequate measures to protect workers and customers, or the promotion of misinformation that may exacerbate the public health risk affects the quality and safety of the services or goods, the undertaking can unilaterally refuse to deal with the firm.

Kenya - Anjarwalla & Khanna

As mentioned above, the Competition Act generally prohibits decisions by undertakings which have as their object or effect the prevention or lessening of competition in trade. Certain particularly harmful agreements, such as agreements among competitors to fix prices, rig bids, or allocate markets, are unlawful per se. On a strict reading of the law, undertakings unilaterally refusing to deal with a firm may constitute a Restrictive Trade Practice and parties should therefore proceed with caution prior to imposing measures such as a refusal to deal.

Malawi - Savjani & Co.

As mentioned above, the Competition and Fair Trading Act generally prohibits agreements, decisions and concerted practices which are likely to result in prevention, restriction or distortion of competition. The Competition and Fair Trading Commission (CFTC) can authorise acts, agreements or understandings which are not prohibited by the Act and do not constitute trade agreements, misuse of market power or unfair trading.

On a strict reading of the law, undertakings unilaterally refusing to deal with a firm may constitute an Anti-Competitive Trade Practice and parties should therefore proceed with caution prior to imposing measures such as a refusal to deal.

Mauritius - BLC Robert & Associates

As mentioned above, the Act generally prohibits decisions by undertakings which have as their object or effect the prevention or lessening of competition in trade. Certain particularly harmful agreements, such as agreements among competitors to fix prices, share markets, rig bids, or allocate markets, are unlawful per se. On a strict reading of the law, undertakings unilaterally refusing to deal with a firm may constitute a restrictive business practice and parties should therefore proceed with caution prior to imposing measures such as a refusal to deal.

Morocco - BFR & Associés

Law No. 104-12 relating to freedom prices and competition generally prohibits decisions by undertakings which have as their object or effect, the prevention or reduction of competition in trade. Certain particularly harmful agreements, such as agreements among competitors to fix prices, rig bids, or allocate markets, are unlawful. Undertakings that unilaterally refuse to deal with a firm may constitute a Restrictive Trade Practice and parties should therefore proceed with caution prior to imposing measures such as a refusal to deal.

Nigeria - G.Elias & Co.

No. An actor cannot unilaterally refuse to deal with a firm that fails to adopt adequate measures to protect workers and customers or a firm that promotes misinformation that may exacerbate the public health risks especially where contractual obligations exist between the parties. If the refusal has no anti-competitive impact because the other actor can readily find other counterparties on similar terms, there would be no issue.

Where, for instance, the contract between actors involves the purchase and/or delivery of goods by one from the other, the goods to be delivered by the actor who has refused or failed to adopt measures to protect its workers or customers may be rejected by the other actor. This is not because there is a competition law defence but because there is an implied condition as to fitness for purpose or use statutorily-imposed on a seller or supplier of goods which the rejecting actor can argue has not been met by an actor who has refused or failed to adopt measures to protect its workers or customers (Sale of Goods Act (s. 14)).

Tanzania - A&K Tanzania

As mentioned above, the Fair Competition Act generally prohibits agreements by undertakings which have as their object or effect the appreciable prevention or lessening of competition in trade. Certain particularly harmful agreements, such as agreements among competitors to price fix, collusive bidding and tendering, or collective boycott are unlawful per se. On a strict reading of the law, undertakings unilaterally refusing to deal with a firm may constitute a Restrictive Trade Practice and parties should therefore proceed with caution prior to imposing measures such as a refusal to deal.

COMESA -

Refusal to deal would generally be considered to be a restrictive trade practice under the COMESA competition regime as it results in lessening of competition. With this is in mind, it is critical that caution is taken prior to unilaterally refusing to deal with a player in the market. However, where there is a justification for such refusal to deal (e.g. public health concerns) which is well grounded, this could be used as a defence if any concerns are raised by the Commission.

How does COVID-19 impact investigations where the competition regulators require responses to queries to be provided within a certain period?

Ethiopia - Mesfin Tafesse & Associates

The Trade Competition and Consumer Protection Authority (TCCPA) is yet to issue guidance on how the current COVID-19 will impact investigations, particularly where the TCCPA requires responses to queries to be provided within a specified timeline. However, parties should engage with the TCCPA on a case by case basis for directions on how to proceed and also to request for extensions of time to submit information or respond to enquiries by the TCCPA in the event that they are constrained from being able to respond in a timely manner as a consequence of COVID-19. Such requests can be made orally with the TCCPA but should ideally be followed up with written communication.

Kenya - Anjarwalla & Khanna

At this time, the CAK is yet to issue a statement providing guidance on how the current COVID-19 pandemic will impact investigations particularly where the CAK requires responses to queries to be provided within a specified timeline. However, parties should engage with the CAK on a case by case basis for directions on how to proceed and also to request for extensions of time to submit information or respond to enquiries by the CAK in the event that they are constrained from being able to respond to the CAK in a timely manner as a consequence of COVID-19. Such requests can be made orally with the CAK but should ideally be followed up with written communication.

Malawi - Savjani & Co.

The Competition and Fair Trading Act provides that the Competition and Fair Trading Commission (CFTC) shall make its decision on a merger assessment within 45 days of receipt of an application, or the date on which the applicants provide information sought by the CFTC if that date is later. However, according to the CFTC Merger Assessment Guidelines (mentioned above in question 1), the counting of days shall only be valid if both parties have submitted complete information. If the parties have submitted incomplete information, the CFTC can adjourn the investigation and a stop clock provision shall apply.

At this time, the CFTC is yet to provide guidance on how the current COVID-19 pandemic will impact investigations. However, parties should engage with the CFTC on a case by case basis for directions on how to proceed and also to request for extensions of time to submit information or respond to enquiries by the CFTC in the event that they are constrained from being able to respond to the CFTC in a timely manner as a consequence of COVID-19. Such requests can be made orally with the CFTC but should ideally be followed up with written communication. The CFTC may then use its power to adjourn investigations impacted by COVID-19.

Mauritius - BLC Robert & Associates

At this time, the CCM is yet to issue a statement providing guidance on how the current COVID-19 pandemic will impact investigations. However, parties should engage with the CCM on a case by case basis for directions on how to proceed and also to request for extensions of time to submit information or respond to enquiries by the CCM in the event that they are constrained from being able to respond to the CCM in a timely manner as a consequence of COVID-19. Such requests can be made with written communication.

Morocco - BFR & Associés

All institutions, organizations, law firms, experts and companies concerned are to submit all documents via e-mail to secretariat.general@conseil-concurrence.ma. Original versions of these documents must be made available at the request of the Council’s investigation services.

In order to allow the instructional services of the CAM to carry out the necessary due diligence for the processing of such files, the hearing sessions may be organized either by video-conference via Google’s Hangouts Meet module, electronic mail exchange or any other means of remote communication.

Therefore, parties will be able to reply electronically to the queries from the CAM.

Nigeria - G.Elias & Co.

During the COVID-19 pandemic, it is expected that there will be considerable delays where the FCCPC has requested for timely answers to questions raised during an investigation because businesses are not operating optimally. It is therefore expected that where the FCCPC has requested answers to queries from an actor and the actor is unable to provide the answers within the period stipulated, such an actor should take steps to ask for an extension of time from the FCCPC to answer the queries; otherwise, the actor will be in breach of the Act.

Tanzania - A&K Tanzania

At this time, the FCC is yet to issue a statement providing guidance on how the current COVID-19 pandemic will impact investigations particularly where the FCC requires responses to queries to be provided within a specified timeline. However, parties should engage with the FCC on a case by case basis for directions on how to proceed and also to request for extensions of time to submit information or respond to enquiries by the FCC in the event that they are constrained from being able to respond to the FCC in a timely manner as a consequence of COVID-19. Such requests can be made orally with the FCC but should ideally be followed up with written communication.

COMESA -

As highlighted above, the Commission has relaxed the requirement to submit a complete merger filing within 30 days of the decision to merge. Parties are only required to start engagement with the Commission as the outstanding information is compiled and submitted. If initial engagement has commenced, the Commission will not seek to penalise the parties for failure to submit complete merger notification.

With regards to other matters before the Commission, parties will need to engage the Commission to request for additional time while citing delays due to the COVID-19 pandemic.

What is the legal position on hoarding of products with the subsequent intention of increasing prices and/or collusive increase of prices in light of increased demand (commonly known as price gouging) during the COVID-19 crisis?

Ethiopia - Mesfin Tafesse & Associates

When entities act in concert or collude to increase prices, or hoard goods with the subsequent intention of increasing prices due to a sharp increase in demand, it will qualify as an anti-competitive trade practice in violation of the Competition Proclamation and the State of Emergency Regulation No. 03/2020. 

It is worth noting that a taskforce was formed by the Addis Ababa Trade Office to regulate illegal price increases on 13 March 2020. A notice to that effect, including a warning to manufacturers and retailers against illegal price increases and hoarding, was issued. In the notice, the government indicated that such conduct by manufacturers and retailers would be punishable by closure of the entities.

On 14 March 2020, the taskforce started taking action on businesses that were illegally increasing prices. Moreover, on 24 March 2020, the Trade Competition and Consumer Protection Authority issued another cautionary notice on selling products that deceive customers by stating that the said products prevent or cure COVID-19.

Kenya - Anjarwalla & Khanna

Price gouging occurs when a seller increases the prices of goods, services or commodities to a level much higher than is considered reasonable or fair. This situation can occur when there is a demand or supply shock as a result of a natural disaster such as an earthquake or a public health crisis such as the Covid-19 pandemic. When entities act in concert or collude to increase prices, or hoard goods with the subsequent intention of increasing prices due to a sharp increase in demand, the same may be deemed a Restrictive Trade Practice in violation of the Competition Act.

It is worth noting, that the CAK issued a cautionary notice on illegal price increases on 13 March 2020 warning manufacturers and retailers against illegal price increases and hoarding. In the notice, the CAK indicated that such conduct by manufacturers and retailers would be deemed to be a Restrictive Trade Practice in violation of the Act and would attract a penalty of up to 10% of the respective turnover of the manufacturers and retailers in question pursuant to the Act.

Entities should therefore be careful to ensure that any increase in the price of a product or service is reasonable and is not part of a concerted practice with other undertakings to drive up the price of product.

Malawi - Savjani & Co.

Price gouging occurs when a seller increases the prices of goods, services or commodities to a level much higher than is considered reasonable or fair. This situation can occur when there is a demand or supply shock as a result of a natural disaster such as an earthquake or a public health crisis such as the COVID-19 pandemic. When entities act in concert or collude to increase prices, or hoard goods with the subsequent intention of increasing prices due to a sharp increase in demand, the same may be deemed an Anti-Competitive Trade Practice in violation of the Competition and Fair Trading Act.

It is also important to note that on 4th April 2020, the President of Malawi directed the Competition and Fair Trading Commission (CFTC) to increase surveillance and protect consumers from anyone who wants to unfairly increase prices of essential goods. To this end, the CFTC has undertaken to implement strict monitoring of price controls and has implored consumers to report any unfair trading conduct.

Entities should therefore be careful to ensure that any increase in the price of a product or service is reasonable and is not part of a concerted practice with other undertakings to drive up the price of product.

Mauritius - BLC Robert & Associates

Price fixing can occur when there is a demand or supply shock as a result of a natural disaster such as an earthquake or a public health crisis such as the COVID-19 pandemic. When entities act in concert or collude to fix price, share market or restrict supply of goods, the same may be deemed a restrictive business practice in violation of the Act.

It is also worth noting that agreements between a supplier/distributor and its reseller in respect of the selling price of the reseller (resale price) is also prohibited under the Act. A reseller/retailer must be free to independently set its own price at which it will resell/retail to consumers (resale price).

In this context only non-binding price recommendations (so-called recommended retail prices, RRP) and maximum retail prices (MRP) are admissible.

Entities should therefore be careful to ensure that any increase in the price of a product or service is reasonable and is not part of a concerted practice with other undertakings to drive up the price of product.

Morocco - BFR & Associés

Price gouging occurs when a seller increases the prices of goods, services or commodities to a level much higher than is considered reasonable or fair. This situation can occur when there is a demand or supply shock as a result of a natural disaster such as an earthquake or a public health crisis such as the COVID-19 pandemic. When entities act in concert or collude to increase prices, or hoard goods with the subsequent intention of increasing prices due to a sharp increase in demand, the same may be deemed a Restrictive Trade Practice in violation of the Competition Act.

With a view to fight practices of certain manufacturers and retailers during this period of health emergency, a rigorous control was put in place by the competent authorities in order to gradually regulate the markets.

Owing to several interventions by the joint provincial and local control committees conducted during from 1 March 2020 to 29 March 2020, a total of 768 offences relating to the prices and quality of food products including three offences relating to clandestine storage (prohibited by Article 32 of the Competition Act) were discovered.

The Inter-ministerial Commission (the Commission) in charge of monitoring supply, control of prices and quality announced that as of 24 March 2020, national markets will be supplied with all basic products on the basis of data submitted by the competent departments of all the ministerial departments concerned with supply, prices and control.

In addition, the Commission holds bi-weekly meetings (every Monday and Thursday) to monitor developments in the supply market as well as the price control situation with a view to taking all the legal measures in force to deal with issues of fraud, monopolies, speculation and price increases in accordance with the provisions of the Competition Act.

Nigeria - G.Elias & Co.

Hoarding of products with the aim of increasing prices during the COVID-19 pandemic is not permissible. Hoarding of products and collusive increases in prices constitute violations of sections 108(1)(b)(c) and 115(3) and 124(1) of the Act.

The FCCPC issued a Caution on 28 February 2020, advising actors to desist from price-gouging and similar obnoxious trade practices.  The caution warned against the arbitrary, unreasonable, excessive and irrational pricing of critical hygiene products such as hand sanitisers. The FCCPC urged pharmacies and department stores to desist from such acts and informed the actors that it will enforce the provisions of the Act against any conspiracy, combination or arrangement that intends to distort the market during the COVID-19 pandemic. Pursuant to the Caution, the FCCPC is already set to prosecute four (4) major grocery stores in Lagos and Abuja, Nigeria, for arbitrary increases in the prices of hygiene products.

The Lagos State Infectious Diseases (Emergency Prevention) Regulation 2020 (the Regulations) further empowers the Governor of the State to direct that no person may hoard foods, drugs and other essential goods and services within any given area or refuse to provide food, drugs or essential goods and services within such an area.  We do not know whether the Governor has exercised this power.

Furthermore, it is an offence under the Regulations to:

  1. artificially inflate the prices of food, drugs and other essential goods and services within a local  area; and
  2. hoard foods, drugs and other essential goods and services or refuse to provide food, drugs or essential goods and services within the area.

Where a person breaches the directives under the Regulations, the Governor may:

  1. direct the seizure and forfeiture of the food, drugs or essential goods and services; and
  2. direct that the forfeited goods be used to alleviate the needs in the area.

Tanzania - A&K Tanzania

Price gouging occurs when a seller increases the prices of goods, services or commodities to a level much higher than is considered reasonable or fair. This situation can occur when there is a demand or supply shock as a result of a natural disaster such as an earthquake or a public health crisis such as the COVID-19 pandemic. When entities act in concert or collude to increase prices, or hoard goods with the subsequent intention of increasing prices due to a sharp increase in demand, the same may be deemed a restrictive trade practice or unconscionable conduct in violation of the Fair Competition Act.

It is worth noting, that the FCC issued a cautionary notice on illegal price increases on 19 March 2020 warning importers, traders, manufacturers and dealers against illegal price increases and hoarding. In the notice, the FCC indicated that such conduct by importers, traders, manufacturers and dealers would be deemed to be a Restrictive Trade Practice in violation of the Act. This has further been echoed by the Minister of Industry and Commerce in his press release dated 21 March 2020.

Entities should therefore be careful to ensure that any increase in the price of a product or service is reasonable and is not part of a concerted practice with other undertakings to drive up the price of product.

Uganda - MMAKS Advocates

Hoarding products and hiking prices is not expressly prohibited by any form of legislation. The President has, however, firmly spoken out against increasing food and essential commodity prices during the COVID-19 pandemic. It will not be unusual that a government directive addressing the rampant price increase is issued to cater for stability during the COVID-19 pandemic.

UAE - Anjarwalla Collins & Haidermota

Price gouging occurs when a seller increases the prices of goods, services or commodities to a level much higher than is considered reasonable or fair. This situation can occur when there is a demand or supply shock as a result of a natural disaster such as an earthquake or a public health crisis such as the COVID-19 pandemic. When entities act in concert or collude to increase prices, or hoard goods with the subsequent intention of increasing prices due to a sharp increase in demand, the same may be deemed a restrictive trade practice, in violation of UAE Competition Law.

Entities should therefore be careful to ensure that any increase in the price of a product or service is reasonable and is not part of a concerted practice with other undertakings to drive up the price of product.

It will be important to note that the UAE Government is strictly monitoring retail businesses which provide essential services (such as supermarkets, grocery stores, pharmacies etc.) to ensure that there are no unauthorised price increases. Any businesses which are found to be in contravention of these requirements are subject to fines, suspension and even revocation of their business licenses.

Will competition regulators hold meetings and carry out site visits during this period?

Ethiopia - Mesfin Tafesse & Associates

The Trade Competition and Consumer Protection Authority (TCCPA) is yet to issue a statement providing guidance on how the current COVID-19 pandemic will impact the TCCPA’s capacity to hold meetings and carry out site visits during this period. However, parties should envisage the possibility of the ongoing COVID-19 pandemic disrupting the normal day to day functioning of the TCCPA. 

Nevertheless, the taskforce formed by the Addis Ababa Trade Office has, during the COVID-19 period, carried out investigations into alleged breaches of competition laws such as hoarding of products and illegal price increments and proceeded to impose penalties against parties found to be in breach.

Kenya - Anjarwalla & Khanna

At this time, the CAK is yet to issue a statement providing guidance on how the current COVID-19 pandemic will impact the CAK’s capacity to hold meetings and carry out site visits during this period. However, parties should envisage the possibility of the ongoing COVID-19 pandemic disrupting the normal day to day functioning of the CAK. 

Nevertheless, the CAK has during the COVID-19 period carried out investigations into alleged breaches of competition laws such as breach of the buyer power provisions and proceeded to impose penalties against parties found to be in breach. A case in point is the recent decision made against CleanShelf Supermarkets in connection with an alleged hike in prices in relation to hand sanitizers in the wave of COVID-19 in Kenya.

Malawi - Savjani & Co.

At this time, the Competition and Fair Trading Commission (CFTC) is yet to provide guidance on how the current COVID-19 pandemic will impact the CFTC’s capacity to hold meetings and carry out site visits during this period. However, parties should envisage the possibility of the ongoing COVID-19 pandemic disrupting the normal functioning of the CFTC.

Mauritius - BLC Robert & Associates

At this time, the CCM is yet to issue a statement providing guidance on how the current COVID-19 pandemic will impact the CCM’s capacity to hold meetings and carry out searches during this period. However, parties should envisage the possibility of the ongoing COVID-19 pandemic disrupting the normal day to day functioning of the CCM.

Morocco - BFR & Associés

At this time, the CAM  is yet to issue a statement providing guidance on how the COVID-19 pandemic will impact its capacity to hold meetings and carry out site visits during this period. However, parties should envisage the possibility of the ongoing COVID-19 pandemic disrupting the normal day-to-day functioning of the CAM.

The CAM has however considered (during the COVID-19 period) the government’s request for an opinion regarding  the regulation of the prices of hydro alcoholic gels and protective masks, due to the spread of COVID-19, as admissible on the basis that it meets the conditions laid down in Article 4 of Competition Act.

Nigeria - G.Elias & Co.

The FCCPC is yet to issue a statement providing guidance on how the current COVID-19 pandemic will impact its capacity or ability to hold meetings or carry out site visits during this period. However, parties should envisage the possibility of the ongoing COVID-19 pandemic disrupting the normal day-to-day functioning of the FCCPC.

There is a general “work from home” order dated 24 March 2020 stating that all public servants should work remotely. Further to that directive, government institutions including the FCCPC have already adopted the remote working practice.

Before the order was made, the FCCPC carried out investigations into alleged breaches of the competition law, such as excessive and irrational pricing of critical hygiene products laws. Recently also, following the warning issued by FCCPC to sellers engaged in arbitrary increases in prices of protective and hygiene products in the wake of this recent outbreak of COVID-19, a major E-Commerce platform in Nigeria delisted 390 products belonging to 168 sellers of hand sanitisers and face masks from its platform.

Tanzania - A&K Tanzania

At this time, the FCC is yet to issue a statement providing guidance on how the current COVID-19 pandemic will impact the FCC’s capacity to hold meetings and carry out site visits during this period. However, parties should envisage the possibility of the ongoing COVID-19 pandemic disrupting the normal day to day functioning of the FCC.

Nevertheless, the FCC has during the COVID-19 period carried out investigations into alleged breaches of competition laws. In the FCC’s cautionary notice dated 19 March 2020, the Director General of the FCC stated that the FCC has received complaints on the scarcity and overpricing of antiseptic, face masks, gloves and the FCC has investigated and noted that the complaints are valid. Therefore importers, traders, manufacturers and dealers are reminded that the Fair Competition Act prohibits unfair trading practices such as overpricing.

COMESA -

No, the Commission has suspended on-site investigations and physical meetings at its offices until the situation normalises. In the alternative, the Commission will explore teleconferencing if there is need to discuss a matter with parties or their advisers.

Contacts

Anne Kiunuhe

Anne Kiunuhe

Partner, Anjarwalla & Khanna

Arshad Dudhia

Arshad Dudhia

Managing Partner, Musa Dudhia & Co.

Dominic Rebelo

Dominic Rebelo

Partner, Anjarwalla & Khanna

Eric Cyaga

Eric Cyaga

Partner, K. Solutions & Partners

Fayaz Hajee Abdoula

Fayaz Hajee Abdoula

Partner, BLC Robert & Associates

Fiona Magona

Fiona Magona

Partner, MMAKS Advocates

Foued Bourabiat

Foued Bourabiat

Managing Partner, Bourabiat Associés

Francisco Avillez

Francisco Avillez

Managing Partner, ABCC

Gbolahan Elias

Gbolahan Elias

Partner, G.Elias & Co.

Geofrey Dimoso

Geofrey Dimoso

Partner, A&K Tanzania

Jason Harel

Jason Harel

Partner, BLC Robert & Associates

Julien Kavuruganda

Julien Kavuruganda

Partner, K. Solutions & Partners

Krishna Savjani

Krishna Savjani

Managing Partner, Savjani & Co.

Luisa Cetina

Luisa Cetina

Director, Anjarwalla & Khanna

Mesfin Tafesse

Mesfin Tafesse

Principal Attorney, Mesfin Tafesse & Associates

Sahondra Rabenarivo

Sahondra Rabenarivo

Managing Partner, Madagascar Law Office

Salimatou Diallo

Salimatou Diallo

Partner, SD Avocats

Segun Omoregie

Segun Omoregie

Partner, G.Elias & Co.

Shemane Amin

Shemane Amin

Partner, A&K Tanzania