Mauritius: Competition Commission
Mauritius
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Mauritius: Competition Commission

Mauritius: Competition Commission

Mauritius

Mauritius: from the enforcer

Address: 10th Floor, Hennessy Court, Pope Hennessy Street, Port Louis 11404, Mauritius
Tel: +230 211 2005
Fax: +230 211 3107
Web: www.competitioncommission.mu

Contacts

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Deshmuk Kowlessur
Executive Director
Tel: +230 211 2005
Email: [email protected]

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Aniro Rama
Head, Corporate Services
Tel: +230 211 2005
Email: [email protected]

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Vipin Kamal Naugah
Head, Investigations (Collusive Agreements)
Tel: +230 211 2005
Email: [email protected]

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Sudesh Puran
Head, Investigations (Unilateral Conduct)
Tel: +230 211 2005
Email: [email protected]

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Sailesh Kumar Ramyead
Head, Investigations (Merger Control)
Tel: +230 211 2005
Email:  [email protected]

Questions and answers

How long is the head of agency’s term of office?

The head of the Competition Commission is the executive director, who is appointed by the President of Mauritius upon the recommendation of the Prime Minister after consultation with the leader of the opposition. The term of appointment is determined by the President and the duration is not provided for in the law.

The current executive director’s term of office is for three years and is renewable.

When is he or she due for reappointment?

He is due for reappointment on 1 April 2023.

Which posts within the organisation are political appointments?

None of the posts within the organisation are political appointments. The appointments of the executive director and the commissioners, including the chairperson, are carried out in a similar manner (that is, by the President of Mauritius upon the recommendation of the Prime Minister after consultation with the leader of the opposition).

What is the agency’s annual budget?

The average annual budget is estimated around 48 million rupees.

How many staff are employed by the agency?

There are currently 25 staff employed by the agency.

To whom does the head of the agency report?

The Competition Commission has an integrated model agency with investigative and adjudicative functions carried out independently by two organs within the same agency. While the executive director and his office carry out the investigative functions, the commissioners carry out the adjudicative functions. In the exercise of his functions, the executive director is independent and does not receive instructions, nor is the subject of control from any person or authority. However, the law provides for accountability by laying down an annual report in parliament, which shall describe all the investigations conducted and the result thereof, the audited accounts of the Competition Commission and a report on corporate governance.

Do any industry-specific regulators have competition powers?

Yes, the following regulators have competition powers:

  • the Information and Communication Technologies Authority (ICTA), the regulator for the ICT sector, in relation to dominant players in the telecommunications industry under the Information and Communication Technologies Act 2001;
  • the Financial Services Commission (FSC), the regulator for non-bank financial services sector and global business. Public takeovers are governed by the Financial Services Act 2007, the Securities Act 2005 and the rules and regulations made under these laws, namely the Securities (Takeover) Rules 2010 and the Securities (Acquisition of the shares of the dissenting shareholders during takeovers) Regulations 2010. These laws apply to corporations defined as ‘reporting issuers’. The FSC also ensures there is free choice of insurance under the Insurance Act 2005;
  • the Procurement Policy Office (PPO), in relation to collusion and bid-rigging under the Public Procurement Act 2006; and
  • the Bank of Mauritius, in relation to the acquisition of interest in a financial institution and mergers.

If so, how do these relate to your agency’s role?

By virtue of its powers under the Competition Act 2007, the Competition Commission may open investigations independently of the other authorities on restrictive business practices related to any sectors of the economy. The exception being petroleum products and intellectual property rights excluded from the ambit of the competition law.

The aims and objectives of the different legislations in relation to their competition powers somewhat differ from those of the Competition Act. The concerns of industry-specific regulators seem to be more on the protection of the consumers front, while the aim of the Competition Act is to create a level playing field for enterprises in Mauritius.

In terms of mergers, the sector regulator normally looks at prudential aspects while the Competition Commission looks at the substantial lessening of competition on the market.

The Competition Commission has signed memoranda of understandings (MOUs) with various sector regulators. MOUs exist with the PPO, the FSC, the ICTA and the Bank of Mauritius, among others. The aim of these MOUs is to situate the responsibilities of each institution under their respective legislation and how they may work together whenever competition issues crop up.

Further, under the Information and Communication Technologies Act 2001, the ICTA is specifically required by the act to consult the Competition Commission when drawing up guidelines concerning significant market power.

May politicians overrule or disregard the authority’s decisions? If they have ever exercised this right, describe the most recent example.

No. Only the Supreme Court, which is the highest court in Mauritius, has the power to overrule the decision of the Competition Commission. The Competition Act specifically ensures that the Competition Commission acts independently of politicians, by providing in section 37 that:

(i) A minister may give written directions of a general character to the Competition Commission relating to any additional public policy factors that he or she wishes the Competition Commission to have regarded in reaching its determinations.

(ii) The Competition Commission may, upon receipt of directions by the minister under subsection (i), issue a written reply to the minister.

(iii) The directions given by the minister under sub­section (i) and the reply by the Competition Commission, if any, under subsection (ii) shall be published in the Gazette.

Therefore, ministers may only give written directions of a general character and such written direction is gazetted for the purposes of transparency.

Does the law allow non-competition aims to be considered when your agency takes decisions?

Yes. Under section 50 of the Competition Act, when contemplating remedial action, the Competition Commission shall have regards to off­setting public benefits and whether and to what extent the benefits, if they are present, should be taken into account in determining the remedial action to be taken.

Offsetting public benefit shall be considered if it is shown that the effects of any absence, prevention, restriction or distortion of competition are outweighed by specific gains, and the benefits have been or are likely to be shared by consumers and business in general. The specific gains are in respect of:

  • the safety of goods and services;
  • the efficiency that goods are produced, supplied or distributed or services are supplied or made available;
  • the development and use of new and improved goods and services and in the means of production and distribution; or
  • the promotion of technological and economic progress.

Which body hears appeals against the agency’s decisions? Is there any form of judicial review beyond that mentioned above? If so, which body conducts this? Has any competition decision by the agency been overturned?

Once the Competition Commission has made a decision, any party which is dissatisfied with an order or direction of the Competition Commission may appeal to the Supreme Court against that order or direction under section 67 of the Competition Act.

Appeals are heard by the Supreme Court in the form of a full appeal. Otherwise, every decision of an administrative body in Mauritius is subject to judicial review.

Currently two of the decisions of the Commission is on appeal at the Supreme Court.

Has the authority ever blocked a proposed merger? If yes, please provide the most recent instances.

No. As at date competition concerns that were Identified in merger cases were satisfactorily addressed through commitments by the parties concerned.  There was one case in which the matter was not resolved through commitments but the parties abandoned the transaction.

Has the authority ever imposed conditions on a proposed merger? If yes, please provide the most recent instances.

Yes. The Competition Commission has cleared various mergers subject to conditions, which included both structural and behavioural commitments. Recently, the Competition Commission cleared the proposed acquisition of The General Construction Company Ltd by IBL Ltd subject to commitments of a behavioural nature relating to ring fencing, tying and fair, reasonable and non-discriminatory treatment. However, that transaction was abandoned for unrelated reasons.

The acquisition of 30% shares in Medscheme (Mtius) Ltd by Eagle Insurance Ltd was also cleared subject to commitments following potential concerns in the medical Insurance sector.  

Has the authority conducted a Phase II investigation in any of its merger filings? If yes, please provide the most recent instances.

Yes, the Competition Commission has conducted ten Phase II investigations under the merger control provisions of the Competition Act.

Recent Phase II assessments by the Competition Commission include the above two cases and the potential acquisition of a majority stake in Medine Distillery Ltd by New Goodwill Investment Ltd, which is yet to be decided.

Has the authority ever pursued a company based outside your jurisdiction for a cartel offence? If yes, please provide the most recent instances.

No.

Do you operate an immunity and leniency programme? Whom should potential applicants contact? What discounts are available to companies that cooperate with cartel investigations?

Yes, the Competition Commission has had a leniency programme since its inception in November 2009. Potential applicants should contact the executive director concerning leniency.

Full immunity from fines is granted to the party that is first to provide the Competition Commission with evidence of a cartel activity before the Competition Commission has started an investigation into the matter, provided that the Competition Commission does not already have sufficient information to establish the existence of the alleged cartel activity. If parties come after the launch of an investigation, the first to come forward may benefit from up to a 100 per cent reduction in fines, and the second and subsequent applicants may receive up to 50 per cent reductions in fines.

Is there a criminal enforcement track? If so, who is responsible for it? Does the authority conduct criminal investigations and prosecutions for cartel activity? If not, is there another authority in the country that does?

The Competition Act does not make provisions for criminal enforcement for breaches of the Part III of the act, which deals with restrictive business practices (including cartel activities). However, there are other offences under the act that might attract criminal sanctions (for example, sections 52(6) and 70 of the act) whereby, for example, if any person does not respond to requests for information or wilfully gives false information to the Competition Commission, such person may be liable to fines and imprisonment. The Competition Commission may only make a complaint to the police to this effect and criminal sanctions are decided by the courts.

Are there any plans to reform the competition law?

It is felt that the competition law needs to be revisited after 10 years of enforcement. The Competition Commission is currently in the process of reviewing the Competition Act in order to address certain lacunae  in the act and to identify potential amendments that may be brought to it for effective enforcement and to be in line with international good practices and other regional commitments.

When did the last review of the law occur?

The last review was in December 2012, where amendments were brought to the Competition Act. Provisions on leniency and statutory protection to informers were introduced.

Do you have a separate economics team? If so, please give details.

The Competition Commission does not have a separate economics department. The structure is organised into three working groups, each led by a head of investigations. Each group has a balanced mix of economics and legal investigations officers. Two head investigations and six investigation officers are economists.

Has the authority conducted a dawn raid?

Yes, the Competition Commission has conducted dawn raids on three investigations since its inception in November 2009. The dawn raids were conducted on seven enterprises in total.

Has the authority imposed penalties on officers or directors of companies for offences committed by the company? If yes, please provide the most recent instances.

No such powers are present in the Competition Act.

What are the pre-merger notification thresholds, if any, for the buyer and seller involved in a merger?

Merger notification is not mandatory in Mauritius and as such, no threshold for notification is prescribed. However, parties may notify mergers on a voluntary basis.

Are there any restrictions on investments that involve less than a majority stake in the business?

Increase in shareholdings, even below a majority stake, may qualify as a merger situation under the Competition Act, in so far that the acquirer can materially Influence the decision of the target.


Mauritius: from the enforcer's competition economists

Address: 10th Floor, Hennessy Court, Pope Hennessy Street, Port Louis 11404, Mauritius
Tel: +230 211 2005
Fax: +230 211 3107
Email: [email protected]
Web: www.competitioncommission.mu

Contacts

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Deshmuk Kowlessur
Executive Director

Questions and answers

How many economists do you employ?

We currently have eight members in the investigative team with an economics background; two of whom are heads of investigations.

Do you have a separate economics unit?

No. The Competition Commission’s structure is organised into several working groups, each led by a head of investigations. Each group has a balanced mix of economists and legal persons.

Do you have a chief economist?

No.

To whom does the chief economist report?

Not applicable.

Does the chief economist have the power to hire his or her own staff?

The power to hire staff lies with the board of the Competition Commission, but the executive director and heads of working groups sit on the recruitment panel and have a say in the selection of his or her staff.

How many of your economists have a PhD in industrial economics?

One.

Does the agency include a specialist economist on every case team? If not, why not?

Yes, at least one economist is included on every case team.

Is the economics unit a ‘second pair of eyes’ during cases – is it one of the agency’s checks and balances? If not, why not?

As we do not have an economics unit, economics matters are dealt within each working group, but complex matters and issues are brought up to the executive team comprising the executive director and heads of investigations.

How much economics work is outsourced? What type of work is outsourced?

So far all economics work has been carried out internally and none has been outsourced yet.

 

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