The European, Middle Eastern and African Antitrust Review 2017

Morocco: Overview

Norton Rose Fulbright LLP

The year 2015 has been marked by some progress in the implementation of the long-awaited Law No. 104–12 of 2014 on Freedom of Prices and Competition (the 2014 Law), and Law No. 20–13 on the Competition Council (CC) of 30 June 2014 (together, the Reform), which remains nonetheless not applicable to date in Morocco.

Although the laws were promulgated in the Official Journal on 24 July 2014 (Arabic version) and on 7 August 2014 (French version), their entry into force remained subject to the adoption of the decrees necessary for their implementation. The main one (Decree No. 2–14–652) had already been adopted by the government council on 5 November 2014, but was only signed by the Head of the government and published in the Official Journal on 4 December 2014. Interestingly, the text of the Decree finally published in the Official Journal was substantially amended as compared to the draft that had been subject to public consultation, in order to include a number of additional detailed provisions on procedural and practical issues (eg, hearing of witnesses, protection of business secrecy). These detailed provisions clearly show a will to ensure the Reform’s efficiency and implement concrete future actions in the competition law area in Morocco.

However, it seems that not all decrees necessary to the implementation of the 2014 Law have been adopted. In particular, the 2014 Law referred to a decree which would regulate the relations between the CC and sectorial regulation bodies such as the financial regulator (Bank-al-Maghrib) or the insurance regulator (CAPSA). However, this decree has not been adopted, but it is unclear whether this is sufficient to withhold the implementation of the 2014 Law.

In addition, even though Decree No. 2–15–109 of 4 June 2015, which regulates the CC, was finally published in the Official Journal on 18 June 2015, the CC’s members have not, in practice, been appointed yet. Therefore, the CC remains to be established to allow for a concrete implementation of the Reform. At present, the 2014 Law is not applied, thus the provisions of Law No. 06–99 on Freedom of Prices and Competition (or 1999 Law) will still be presented hereafter.

The Reform, when effectively applied, will initiate a new era for competition law in Morocco, by substantially modifying both the antitrust and merger control regimes formerly regulated by the 1999 Law. It seems to respond to the wishes of Abdelali Benamour, president of the former CC. Since his appointment in 2008, Mr Benamour has demonstrated his will to create a strong competition authority and to enforce an ambitious competition policy, despite the very narrow institutional and legal framework provided by the 1999 Law.

In its activity report for 2013 (the 2013 Report),1 the CC outlined the main obstacles to the development of an effective competition policy in Morocco on the basis of the 1999 Law. It appears that the Reform has been drafted with the objective of resolving the following shortcomings:

  • on the antitrust front, the CC only had consultative powers; all decisions and measures had to be adopted by a government department, the Directorate for Competition and Prices (DCP). However, the 2013 Report clearly outlines the cooperation difficulties between the CC and the DCP and the fact that CC opinions or advice were rarely followed by the adoption of concrete measures by the DCP.2 The Reform grants the CC powers to investigate and sanction anticompetitive practices;
  • the Reform will also provide the CC with a number of procedural tools that are widely used by competition authorities worldwide to effectively implement competition policy, including settlement and leniency procedures and also the possibility for the CC to conduct sector enquiries, which are widely used by other authorities such as the European Commission and the UK Competition and Markets Authority;
  • the scope of entities that could initiate an action on the basis of competition law was very narrow, which in practice rendered these kind of actions almost non-existent. After the Reform, private companies, among others, will be able to lodge complaints with the CC to denounce anticompetitive practices;
  • the 2013 Report also outlined the difficulties encountered by the CC in its relations with sectorial regulatory bodies, which are essential for competition authorities to play their regulatory role. The Reform brings some clarification in that respect;
  • the Reform clarifies the rules applicable to appeals against CC decisions, an area that was very uncertain under the 1999 Law; and
  • on the merger control front, the new CC will be the responsible authority for clearing or rejecting transactions, which substantially modifies the filing and review procedure, although the Head of government maintains the right to take over the case for reasons of general interest. In addition, new turnover thresholds have been created aside from the market share threshold, which remains unchanged.

These new provisions, which are largely inspired by French law (at least in the way they are drafted), therefore appear to fulfil one of the objectives expressed by the CC in the 2013 Report, namely to clarify the applicable rules in accordance with international standards. However, one may wonder whether the CC will, in practice, have the material means and be in a position to enforce this ambitious policy, and in particular ensure true independence and manage relations with the government, which has in the past played a key role in many cases.

Institutional organisation

New composition

When appointed, the CC will be composed of the investigation services and a decision-making college. The investigation services are placed under the supervision of a chief case handler and deputy case handlers (all of whom report to the CC’s president). They are in charge of investigations relating to both anticompetitive practices and merger control cases.

The college in charge of rendering the CC’s decisions or opinions comprises the president of the CC, four vice presidents and eight advisory members, all appointed for five years (renewable once).

The question remains whether this change of structure will be accompanied by an increased budget, allowing the CC to have a larger staff. In 2013, the CC had a staff of 27, which is quite limited given the ambitious policy that is envisaged.

New powers

Before the Reform, the CC had very limited powers consisting of being consulted on:

  • bills of law from parliamentary commissions or the government;
  • general questions on competition from the government or organisations listed by the 1999 Law;
  • litigation relating to anticompetitive practices from the competent courts hearing such cases;
  • suspected anticompetitive practices, at the request of the Head of the government or listed organisations, which led to the CC issuing opinions but rarely gave rise to actual prosecutions, as pointed out by the 2013 Report; and
  • merger control, for the transactions the Head of the government decided to refer to the CC, with the final decision to clear or reject the transaction remaining vested with the Head of the government.

The Reform has enriched these consultative powers by allowing the CC to give its opinion ex officio on any question regarding competition, and to publish studies on the general competitive situation at a sectorial or national level. Thereby, the CC, when appointed, will be able to conduct sector inquiries.

But, most importantly, the CC has been granted investigation, decision-making and fining powers both for anticompetitive practices and merger control, which will lead Moroccan competition law into a new era.

Antitrust

The CC will be empowered to investigate suspected cartels or abuses of dominance, either ex officio or directly on the request of undertakings, the government or specifically listed organisations (eg, local authorities, trade unions, professional associations, sectorial regulatory authorities, non-profit consumer associations).

From now on, as for most competition authorities, the CC will therefore be in a position to conduct dawn raids and seize documents in Morocco (heavy investigations), or to carry out lighter investigations in situ or by way of requests for information (ordinary investigations). Investigations will lead to a decision by the CC that may impose a series of significant penalties on the concerned undertaking.

However, in the meantime, and for as long as the CC is not appointed, any investigative powers remain with the services of the Head of the government. It is, however, unknown whether antitrust investigations are among their enforcement priorities.

Merger control

Under the new regime, all transactions triggering the thresholds set out in the 2014 Law and Decree No. 2–14–652 must be notified to the CC (instead of the Head of the government), which will be in charge of conducting the whole review procedure, and decide if they qualify for clearance. However, the Head of the government will retain significant power since he or she will have the right to take over the case for reasons of general interest other than competition law. The CC will also have the power to sanction undertakings that do not comply with their legal obligations (failure to notify, gun jumping, inaccurate statements).

However, for the time being, the 1999 Law remains in force. The notification of a concentration is subject to a market share threshold. Concentrations triggering this threshold must be notified to the Head of the government, who has the decision-making power in merger control, and the CC only has a consultative role in cases where the notified transaction is likely to infringe competition.

Anticompetitive practices

Prohibited practices

Both the 1999 Law and the 2014 Law prohibit three categories of anticompetitive practices, which may encompass diverse behaviours, namely:

  • anticompetitive agreements or concerted practices, either horizontal or vertical, tacit or express, including cartels, restrictions to market access or production, market sharing, bid rigging, etc (article 6 of the 1999 Law and the 2014 Law);
  • abuse of a dominant position or of a situation of economic dependence towards a supplier or customer that does not have any equivalent alternative option. Such abuses may consist in, among others, refusal to sell, tie-in sales, discriminatory conditions of sale, termination of commercial relationships based on a mere refusal to submit to unjustified conditions of sale, minimum resale prices and minimum margin (article 7 of the 1999 Law and the 2014 Law); and
  • abusively low pricing (article 7 of the 1999 Law and the 2014 Law).

Exemptions

Under both regimes, anticompetitive agreements or concerted practices and abuses of dominance may be exempted from sanctions if they either: result from a legal or regulatory text; or contribute to economic (the 2014 Law adds ‘or technical’) progress, provided that: a substantial part of the resulting profit is passed on to users; the restrictions they impose on competition are indispensable to achieve this objective; and they do not eliminate competition for a substantial part of the goods or services concerned.

1999 Law: In the circumstances stated above, an exemption may be granted for certain agreements or categories of agreements by way of an administrative order of the Head of government after receiving a favourable opinion from the CC. Under the current institutional organisation, it is unclear whether this exemption may still be obtained, in the absence of an existing CC.

2014 Law: Similarly, an exemption may be granted for certain agreements or categories of agreements by way of an administrative order of the Head of the government (or of the governmental authority he or she may delegate) after receiving a favourable opinion from the CC and on the basis of a notification file describing: the parties concerned, the purpose of the agreement, the market concerned, market shares and anticipated impact on competition. When the law is effectively applied, it will be interesting to see whether this exemption system is actually used in practice, as other countries that have adopted such a system (eg, France) have hardly ever implemented it.

In addition, the Reform has introduced a de minimis exemption concerning agreements for which the combined market share of the parties does not exceed the following thresholds pursuant to the draft Administrative Order No. 30 87–14 (which has not been published yet):

  • 10 per cent of any market affected by the agreement if the parties are competitors (actual or potential);
  • 15 per cent if they are neither actual nor potential competitors; or
  • 5 per cent if at least 30 per cent of the market is covered by parallel networks of similar agreements, regardless of whether the parties are competitors or not.

Investigations

1999 Law: Administrative agents are authorised to conduct two types of investigations:

  • ordinary investigations: investigators cannot seize documents but they can access any premises, land or means of transport for professional use, and can request the communication of books, invoices and any other professional documents, and collect information and proof by means of summons or in situ; and
  • heavy investigations: investigators can access any place (either for professional or private use) and seize any documents or information medium. Such investigations can, however, only be conducted pursuant to a duly justified order of the crown prosecutor, on request of the CC or of the administration. They must be carried out between 6am and 9pm, under the supervision of the crown prosecutor who has authorised them, in the presence of the occupant or his or her representative and with one or more police officers (including a woman, if necessary, for private houses). Only the investigators, the occupant or his or her representative, and the police officers may consult the documents before they are seized and sealed, a copy of which may be delivered to the occupant at his or her own cost.

In practice, those provisions are rarely implemented, although there have been a few cases in the past.

2014 Law: The Reform has empowered the investigation services of the CC, along with the administrative agents, to conduct the investigations described above. As mentioned, the legal framework of these investigations already existed under the 1999 Law, however the empowerment of the CC by the 2014 Law will allow a true implementation of these provisions.

Insofar as Decree No. 2–14–652 contains the provisions required for enforcing the 2014 Law, investigations could, in theory, be launched imminently once the CC has been appointed and has concretely implemented its new organisation as provided for by Law No. 20–13.

Time-bar

Common to the 1999 Law and the 2014 Law: Facts dating back more than five years may not be referred to the CC if no attempt has been made to investigate, establish or punish them.

2014 Law: Moreover, under the 2014 Law, the facts will be time-barred if 10 years have passed since the offending circumstances ceased and the CC has failed to render any decision on them.

Procedure

1999 Law: Once the investigation has been finalised, the CC’s chief case handler issues a report that is addressed to the undertakings concerned. The undertakings can submit their observations on such report within two months after reception. The parties and/or their lawyers can assist in the hearings of the CC, during which the CC may call witnesses to testify.

2014 Law: Both the investigation and the procedure before the CC are adversarial.

Once the investigation has been finalised, the CC’s chief case handler issues a statement of objections that is addressed to the undertakings concerned and the government commissioner. As from the date of such issuance, the investigation file is made accessible to the parties, to the exclusion of information and documents containing business secrets (a specific procedure is provided for the protection of business secrets). The undertakings and the government commissioner can submit their observations on the statement of objections within two months. Then, the chief case handler shall issue a report summarising its conclusions on the facts and infringements concerned, which opens a new two-month period for the parties and the government commissioner to file their observations.

The parties may request an extension of the deadline of one month in order to access the investigation file and submit their observations.

The procedure before the CC ends with the final hearing, which is not public, but restricted to the parties concerned (and their lawyers) and the government commissioner, and as the case may be, witnesses that the CC may call to testify.

Investigation sanctions

Common to the 1999 Law and the 2014 Law: The sanctions applicable in case of failure to comply with the legal requirements during an investigation remain unchanged. A term of imprisonment of between two months and two years or a fine of between 5,000 and 200,000 dirhams, or both, may be imposed on any person responsible for: obstructing the investigators in the exercise of their functions; refusal to communicate documents requested by the investigators, or dissimulation or falsification of such documents; deliberate provision of wrong information or statements; refusal to provide information and documents in that person’s possession or under his or her control; or slander and assault. Legal persons may be held severally liable with their directors in this respect.

Sanctions on anticompetitive practices

Common to the 1999 Law and the 2014 Law: Anticompetitive agreements or concerted practices and abuses of dominance may lead to a variety of sanctions and measures:

  • civil nullity: agreements that are related to such practices are void and may be declared so by the competent courts; and
  • criminal sanctions: a term of imprisonment of between two months and one year or a fine of between 10,000 and 500,000 dirhams, or both, may be imposed by competent courts on any natural person who has taken, fraudulently or in full knowledge of the facts, a personal and decisive part in conceiving, organising, implementing or monitoring such practices.

Under the 1999 Law:

  • interim measures aiming at remedying any serious and immediate damage to the economy of Morocco, the sector concerned, or the interests of the consumers or of the plaintiff – such measures can be ordered by the Head of government upon recommendation of the CC, only incidentally to a request for preliminary opinion; and
  • publicity measures by publishing or posting the CC’s decision or an extract of it, under the new law, such measure can be ordered by the Head of the government.

Under the 2014 Law:

  • interim measures aiming at remedying any serious and immediate damage to the economy of Morocco, the sector concerned, or the interests of the consumers or of the plaintiff – under the new regime, such measures will be decided by the CC, after an audition of the concerned parties and the commissioner of the government;
  • administrative financial penalties; the CC may impose the following sanctions:
    • a financial penalty in the amount of up to 10 per cent of the highest worldwide consolidated turnover of the undertaking concerned in the fiscal years preceding the one during which the practices were implemented (there is no limitation as to the number of the fiscal years that may be taken into account in this respect). If the infringer is not an undertaking, the penalty shall not exceed 4 million dirhams. The penalty shall be doubled in case of a repeated infringement within five years;
    • injunctions associated with a periodic penalty payment, which shall not exceed 5 per cent of the daily average turnover, per day of delay in complying with said injunctions; and
    • publicity measures by publishing or posting the CC’s decision or an extract of it, under the new law, such measure can be ordered by the CC.

Leniency and settlement procedures

The 2014 Law has introduced separate leniency and settlement procedures allowing undertakings to apply for immunity or reductions of fine before the CC. These procedures did not exist under the 1999 Law.

The leniency procedure set out in article 41 of the law provides that a full immunity or partial reduction of fine may be granted to undertakings that help to establish the existence of an infringement and to identify those responsible. To benefit from this procedure, the undertaking must provide new information that the CC or the administration did not possess previously. On the basis of this contribution, the CC adopts a provisional opinion specifying the envisaged amount of reduction (which shall be proportionate to the value of the contribution) and the conditions that the undertaking must observe to benefit from it. Such immunity or reduction shall only be confirmed in the final decision of the CC on the merits of the case.

The settlement procedure, which is set out in article 37 of the law, provides that the maximum amount of the incurred financial penalty is reduced by half if the undertaking commits not to contest the objections that are notified to it by the CC. In addition, the CC may accept to further reduce the penalty if the undertaking commits to modify its behaviour in the future, which probably refers to compliance programmes although they are not mentioned as such in the 2014 Law. The exact amount of reduction is, however, left to the discretion of the CC and it would be useful for the CC to publish guidelines in this respect given that the 2014 Law does not refer to any future decree on this matter.

In addition, the 2014 Law (article 43) creates a specific settlement procedure for anticompetitive practices (including abusively low pricing) that only affect a local market, provided that the individual and combined turnovers of the undertakings concerned do not exceed 10 million dirhams and 50 million dirhams respectively (Decree No. 2-14-652, article 29). In this respect, the Ministry of General Affairs and Governance may offer that the undertakings (or individuals) settle the case by paying a financial penalty that shall not exceed 500,000 dirhams, or 5 per cent of their turnover in Morocco, whichever is the lower, unless the facts have already been referred to the CC. In the event that an undertaking refuses to settle or fails to perform its obligations under the settlement agreement, the Ministry shall refer the case to the CC.

Appeal

1999 Law: The decisions of the Head of the government relating to anticompetitive practices may be appealed before the administrative court having jurisdiction. The former regime does not specify any specific time limit to file an appeal against a decision relating to anticompetitive practices, however the common provision contained in the administrative jurisdiction law (Law No. 41-90 dated 10 September 1993) provides for a 60-day limit from the date of publication or notification of the decision.

2014 Law: The CC’s decisions on anticompetitive practices may be appealed before the Rabat Court of Appeal within 30 days from the date of receipt of their notification, either by the undertakings concerned or by a government commissioner. Any appeal will not have a suspending effect.

Merger control

Notifiable transactions

1999 Law: The former regime defines a concentration as any act leading to a transfer of ownership or possession on all or part of the goods, rights and obligations of an undertaking, with the object or effect of allowing an undertaking (or a group of undertakings) to exert a decisive influence over another undertaking (or several undertakings).

2014 Law: The Reform, however, has adopted a new definition that is more in line with international standards.

Therefore, the 2014 Law now refers to three types of transactions:

  • mergers of two or more independent undertakings;
  • the acquisition of control, by an undertaking (sole control) or several undertakings (joint control) (or by one or several persons controlling one or several undertakings), over all or part of another undertaking (or several undertakings), be it by acquiring a share in capital, purchasing assets, entering into a contract or any other means. Control may result from rights, contracts or any other means (considered alone or collectively), which confer, having consideration to circumstances of fact or law, the ability to exert a decisive influence on an undertaking’s activity, in particular (i) property or possession rights over all or part of its goods, or (ii) rights or contracts granting decisive influence on the composition, deliberations or decisions of its governance bodies; and
  • the creation of a joint venture, provided that it is a full-function joint venture.

Thresholds

1999 Law: Articles 10 and 12 of the former law provide for a market share threshold: merger control applies when the undertakings which are parties to or subject of the concerned transaction, or the undertakings economically linked to them, have achieved together, during the previous calendar year, more than 40 per cent of the sales, purchases or other transactions on a national market of identical or substitutable goods, products or services, or on a significant part of such market.

It is highly recommended to notify a transaction every time at least one of the undertakings has a market share exceeding the 40 per cent threshold, even though the law specifies that the undertakings should have achieved that threshold ‘together’.

2014 Law: In addition to the market share threshold that already existed under the 1999 Law, the Reform creates two alternative turnover thresholds, but does not specify a year of reference for those thresholds. Consequently, the transaction must be notified to the CC if any of the three following thresholds are met (2014 Law, article 12, and Decree No. 2–14–652, article 8):

  • the combined worldwide turnover of all the undertakings concerned (or groups of individuals or undertakings) exceeds 750 million dirhams;
  • at least two of the undertakings concerned (or groups of individuals or undertakings) have an individual turnover in Morocco exceeding 250 million dirhams; or
  • the combined market share of the undertakings that are parties to, are the object of, or are economically related to the transaction, exceeds 40 per cent of the sales, purchases or other transactions in any Moroccan market for goods, products or services, or a substantial part thereof.

Given the low level of the two turnover thresholds, a question remains as to whether the CC could adopt a more pragmatic approach by interpreting these thresholds as being cumulative despite the wording of the Law, so as to avoid being flooded with merger filings of international groups having no business in Morocco. The first decisions of the CC will probably shed some light on this issue.

In addition, aside from these standard thresholds, specific turnover thresholds may be fixed by a decree for certain sectors or geographic areas in Morocco.

Procedure

1999 Law: The parties concerned must notify the transaction to the Head of the government. The question of which party bears the responsibility for filing is unclear. The Law provides for a six-month review period – including a two-month review phase before the Head of the government (Phase I) and a four-month period before the CC (Phase II).

2014 Law: When appointed, the CC will be the authority in charge of receiving notifications.

The Reform places the burden of filing on the acquirer of control (in case of an acquisition of sole control), or all of the parties concerned, jointly (in case of a merger or creation of a joint venture).

The Reform provides for a five-month period, including a two-month Phase I (60 days from the receipt of a complete notification) and a three-month Phase II (90 days), but these terms may be extended or suspended as follows.

Phase I

If commitments are offered, the 60-day examination will be extended by 20 days.

In addition, a new stop-the-clock procedure has been created. The parties may ask for a suspension of the examination period for a maximum of 20 days in case of ‘particular necessity’ (eg, to finalise the commitments).

Within 20 days from the receipt of the CC’s decision, or if the CC does not take any decision until the end of the first 60-day period, the Head of the government (or a delegate) will have the power to ask the CC to open a Phase II proceeding.

Therefore, Phase I could theoretically last between 60 and 100 days, plus 20 extra days for the Head of the government’s reaction.

Phase II

If commitments are offered less than 30 days before the end of the 90-day period, the 90 days will be extended by 30 days as of the receipt of the commitments by the CC.

In addition, there are two new possible stop-the-clock options:

  • the parties may ask to suspend the examination period for 30 days in case of ‘particular necessity’ (eg, to finalise the commitments); and
  • a suspension (without time limit) may also be decided ex officio by the CC for information purposes (new events, delay of the parties or third parties in sending information) until the cause of such suspension has ceased.

Within 30 days from the receipt of the CC’s decision, the Head of the government (or a delegate) may take over the case (whatever the decision previously rendered by the CC) and make another decision on the transaction for reasons of general interest (other than competition reasons) such as: industrial development, competitiveness of the parties towards international competition, or creating and preserving employment. This decision may be subject to commitments. No deadline is set for the Head of the government’s decision.

Therefore, Phase II could theoretically last from 90 to 150 days (or more if a suspension is decided ex officio by the CC), plus at least 30 extra days for the Head of the government’s reaction (or more since there is no deadline for him or her to issue such a decision).

One peculiarity must be stressed: the political dimension of mergers and the impact they may have on the Moroccan economy (in addition to the competitive assessment) are of significant importance in Morocco. This was already the case before the reform, which allowed sizeable transactions such as the recent Lafarge/Holcim merger to be directly approved by the government without having to consult the CC, in consideration of an overall assessment of the benefits it would bring to the Moroccan economy. The power of the Head of the government to take over the case must therefore not be underestimated.

Substantive test

Common to the 1999 Law and the 2014 Law: The test applied by the authorities consists of analysing (i) whether the concentration is likely to infringe competition, in particular by creating or reinforcing a dominant position, or a buying power that places suppliers in a situation of economic dependence, and if this is the case (ii) whether the transaction provides a sufficient contribution to economic progress to offset its anticompetitive effects.

In many cases, the CC analysed the second aspect (contribution to economic progress), even when the existence of a restriction on competition was not clearly established. The ‘economic progress’ concept plays a key role in merger control assessment and in this context, significant attention is paid to the concrete advantages that the transaction will bring to the Moroccan economy and society, such as employment issues, ecology and added-value development projects that the country will be able to benefit from. It remains to be seen whether the reform will alter this approach.

Suspending effect

Common to the 1999 Law and the 2014 Law: A transaction must not be implemented until it has been cleared.

2014 Law: The parties can request a derogation to close the deal before clearance in case of specific need (for which the parties must provide proper justification), without prejudice to the final decision of the CC.

Sanctions

1999 Law: The former regime provides for a financial penalty in the range of 2 to 5 per cent of the parties’ turnover in Morocco (in the last fiscal year). The maximum amount of the applicable fine may be doubled in the event of a subsequent offence within five years. This sanction may be imposed on undertakings in case of failure to notify.

2014 Law: The reform has removed the 2 per cent minimum, maintaining only the 5 per cent ceiling. This penalty may be imposed on undertakings in case of failure to notify, gun jumping (except upon express authorisation to implement the transaction before clearance), failure to comply with commitments or injunctions, or incomplete or inaccurate information in the notification.

Common to the 1999 Law and the 2014 Law: Should a concentration – despite having been properly notified and cleared – lead to an abuse of a dominant position or of a situation of economic dependence, the authorities may order the undertaking concerned to amend, complete or terminate (within a certain period and, as the case may be, with periodic penalty payments) any act or agreement that has concentrated its economic power and allowed it to commit such abuses.

Appeal

1999 Law: The merger decisions of the Head of the government may be appealed before the administrative court having jurisdiction. Former regime does not specify any specific time limit to file an appeal against a merger decision, however the common provision contained in the administrative jurisdiction law (Law No.41-90 dated 10 September 1993) provides for a 60-day limit from the date of publication or notification of the decision.

2014 Law: The decisions adopted by the CC or the Head of the government (or his or her delegate) in the framework of merger control may be appealed before the Administrative Chamber of the Supreme Court (ACSC), within 30 days of the date on which they are notified.

In order to facilitate appeals by third parties, the decisions should be published on the CC’s website, on the website of the department entrusted with competition law, and in the Official Journal. If implemented in a systematic manner, this should be extremely useful, since one of the main difficulties under the former regime was the lack of published precedents.

The 2014 Law does not specify whether this appeal has a suspensive effect. However, should the ACSC cancel (in whole or part) the decision of the CC or the Head of the government on a notified transaction, the parties will have to file an updated notification within two months from the date on which the ACSC’s decision has been notified to them (Decree No. 2–14–652, article 14).

Notes

  1. http://conseil-concurrence.ma/?wpfb_dl=140.
  2. 2013 Report, p.13.

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