Malawi: from the enforcer
George K Lipimile
Director and Chief Executive Officer
Tel: +265 991 320088
Email: [email protected]
Meti Demissie Disasa
Tel: +265 997 093140
Email: [email protected]
Questions and answers
How long is the head of agency’s term of office?
The director holds office for a period of five years and is eligible for reappointment only for one further term of five years.
When is he or she due for reappointment?
The director is due for reappointment after five years.
Which posts within the organisation are political appointments?
All the positions in the COMESA Competition Commission (the Commission) are appointed on a merit basis through competitive procedural system and on the suitability of individual qualifications as stipulated in the COMESA Competition Regulations.
What is the agency’ annual budget?
The Commission’s total annual budget for 2019 was US$3.8 million.
How many staff are employed by the agency?
The Commission currently employs 15 professional staff members and six support staff. The recruitment exercise is phased out, hence, still ongoing until the organogram, which has 30 positions, is filled.
To whom does the head of agency report?
The Director reports to an independent Board of Commissioners of the Commission and the COMESA Council of Ministers.
Do any industry-specific regulators have competition powers?
Within the COMESA member states there are a number of industry-specific regulators at national level that have jurisdiction on competition matters. For instance, the telecommunications and energy sector regulators.
If so, how do these relate to your role?
The COMESA Competition Regulations (the Regulations) gives the Commission primary jurisdiction over an industry or a sector of an industry that is subject to the jurisdiction of a separate regulatory entity (whether domestic or regional) if the latter regulates conduct involving anticompetitive business practices or mergers and acquisitions that is covered by the Regulations. The Regulations do not, however, apply to conduct expressly exempted by national legislation.
Do politicians have any right to overrule or disregard the decisions of the authority?
The Regulations, unlike some national competition legislations, do not have provisions that allow politicians or any third party to give it policy direction. Hence, there is no right for politicians to overrule or disregard the decisions of the Commission.
Does the law allow non-competition aims to be considered when taking decisions?
With respect to anticompetitive business practices, the Regulations allow the Commission to authorise anticompetitive agreements in cases where there are public benefits that outweigh the anticompetitive detriments of the respective agreement. The Regulations provide for the consideration of certain public interest factors during the assessment of mergers. The Commission has drafted Guidelines on Public Interests to provide clarity and transparency on the manner in which such public interests factors may be considered. These guidelines will be adopted after consultation with the relevant stakeholders. To date, in a limited number of cases, the public interests concerns that have been considered by the Commission include employment conditions and local supply obligations.
It should, however, be noted that public interest matters will only be considered sparingly in circumstances where it is demonstrable that they outweigh the anticompetitive effects in a manner that is clearly perceptible.
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?
The Commission, through the office of the director, submits its recommendations to the Committee Responsible for Initial Determination (CID) after completing an investigation report. The CID has on three occasions amended recommendations made by the Commission in merger assessments. The Commission’s Board of Commissioners hears appeals against the decisions made by the CID. Appeals on the decisions of the Board of Commissioners are made to the COMESA Court of Justice.
Has the authority ever blocked a proposed merger? If yes, please provide the most recent instances.
The Commission has not yet blocked any proposed mergers. While the Regulations allow the Commission to prohibit a merger, the Commission considers that such an outcome should be reserved only where the competition harm arising from a merger cannot be effectively addressed. The Commission has adopted a consultative approach whereby all contentious matters are discussed and addressed with the merging parties and related stakeholders during the investigation. To address such concerns, the Commission has issued a number of approvals on the basis of undertakings provided by the parties to address competition concerns.
Has the authority ever imposed conditions on a proposed merger? If yes, please provide the most recent instances.
The Commission has so far imposed conditions in 23 merger cases.
Has the authority conducted Phase II investigations in any of its merger filings? If yes, please provide the most recent instances.
The COMESA Competition Regulations provide for a standard maximum of 120 days for the review of a merger transaction. The Commission introduced a two-phased merger assessment process through the COMESA Merger Assessment Guidelines adopted on 31 October 2014 to allow the fast track of merger transactions less likely to result in significant competition concerns. A number of transactions are concluded under Phase II investigations.
Has the authority ever pursued a company based outside your jurisdiction for a cartel offence?
Do you operate a leniency programme? Who should potential applicants contact? What discounts are available to companies that cooperate with cartel investigations?
The Commission does not operate a leniency programme. It is, however, in the process of developing a COMESA regional leniency programme to be adopted after the completion of consultations with stakeholders.
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 COMESA Competition Regulations do not provide for criminal enforcement.
Are there any plans to reform the competition law?
The amendment to the COMESA Competition Regulations, which deals with mergers, is an ongoing exercise.
Further, the Commission has developed and operationalised Guidelines for Application of Restrictive Business Practices, Guidelines on Abuse of Dominance under the COMESA Competition Regulations and Guidelines on Market Definition. The Guidelines can be assessed at the Commission’s website www.comesacompetition.org.
Currently, the Appeals Procedural Rules to guide the proceedings of appeals against the decision of the Board of the Commission and Committee Responsible for Initial Determination were adopted in November 2017.
When did the last review of the law occur?
The COMESA Competition Commission has been reviewing the COMESA Competition Regulations since March 2015 and last review was in November 2017. The process of review of the law is ongoing.
Do you have a separate economic team? If so, please give details.
The Commission comprises four divisions, namely, Mergers and Acquisitions; Enforcement and Exemptions; Legal Services and Compliance; and Consumer Welfare and Advocacy. These divisions are staffed with both economists and lawyers.
Has the authority conducted a dawn raid?
The Commission has not yet conducted a dawn raid.
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.
The Commission has so far not imposed penalties on officers or directors of companies for offences committed by the company.
What are the pre-merger notification thresholds, if any, for the buyer and seller involved in a merger?
The Rules on the Determination of Merger Notification Thresholds and Method of Calculation provide that any merger, where both the acquiring firm and the target firm, or either the acquiring firm or the target firm, operate in two or more member states, shall be notifiable if:
- the combined annual turnover or value of assets (whichever is higher) in the common market of all parties to a merger equals or exceeds US$50 million; and
- the annual turnover or value of assets (whichever is higher) in the common market of each of at least two of the parties to a merger equals or exceeds US$10 million, unless each of the parties to a merger achieves two-thirds of its aggregate turnover or assets in the common market within one and the same member state.
Are there any restrictions on investments that involve less than a majority stake in the business?
Minority acquisitions that are capable of conferring a ‘controlling interest’ on the acquiring party are not exempted from the notification obligations under the Regulations. The Commission has issued decisions in a number of merger transactions involving an acquisition of minority shares. Less than a majority stake in the business will only be exempted if such a minority stake does not confer a controlling interest in the business.
Malawi: from the enforcer's competition economists
Address: The Executive Director, Competition and Fair Trading Commission, Off Presidential Drive, New Golden Peacock Complex, 6th Floor, P/Bag 332, Lilongwe, Malawi
Email: [email protected]
Tel: +265 0310001440/441, 0888868740/0882889521