Mauritius: Competition Commission

In summary

This article reviews the operations and activities of the Competition Commission of Mauritius (the Competition Commission), which was established in 2009 when competition law became effective in Mauritius. In particular, the recent cases handled by the Competition Commission in relation to abuse of dominance, restrictive agreements and anticompetitive mergers. It also provides a résumé of the various market studies conducted and its intention to promote pro-competitive public policies through its advisory role. Competition advocacy initiatives to promote a culture of competition are also highlighted, as are cooperation agreements formalised with foreign authorities to better enforce competition law at national and regional levels. Also covered are the various initiatives being taken by the Competition Commission to strengthen its enforcement capacity, in particular the enhancement of cartel detection and, more generally, a review of the legislative framework.

Discussion points

• Review of operations
• Enhanced detection of cartels
• Competition advocacy
• Revamping competition law
• Cooperation
• Going forward

Referenced in this article

• Competition Commission of Mauritius
• Competition Act 2007
• COMESA Competition Commission
• African Competition Forum
• Memorandum of Understanding

The Competition Commission of Mauritius (the Competition Commission) has been in existence for only a decade. Since being founded in 2009, the Competition Commission has established a solid track record in enforcing competition law in Mauritius. It has effectively dealt with different forms of anticompetitive conduct across various sectors of the Mauritian economy and recently picked up much-needed momentum in the area of anti-cartel enforcement. The past few years have also witnessed the Competition Commission opening up its horizons from scrutinising cross-border merger transactions to investigating complex abuse of dominance cases.

Alongside enforcement, the law mandates the Competition Commission with an advisory role to government further to any action or proposed action it makes that may adversely affect competition. The Competition Commission has repeatedly advised government on various policy decisions. With the aim of boosting the awareness of its competition law and the deterrence of anticompetitive conduct, the Competition Commission carried out several advocacy initiatives targeting businesses, associations and the public in general. With a view to improving its performance, the Competition Commission has put a lot of effort into building up its institutional capacity, involving the upgrading of skills to keep pace with a rapidly evolving business landscape and organisational strengthening to reinforce the capabilities of the Competition Commission.

With economies moving ever closer together and becoming more interdependent thanks to globalisation, cooperation with local and international bodies has ranked high on the agenda of the Competition Commission. In many instances, cooperation with both local regulators and inter­national competition agencies has been formalised in memoranda of understanding (MOUs). The Competition Commission formalised its collaboration in the form of an MOU with the COMESA Competition Commission (CCC), which has resulted in new work streams. It is now part and parcel of the enforcement routine of the Competition Commission to collaborate with the CCC on regional merger transactions and potential anti­competitive agreements.

The Competition Commission has restructured its operations through the setting up of work groups on functional and instrument-based structures. The working groups are geared towards specialisation, accountability and ownership while maintaining the internal flexibility. After years of operations, the Competition Commission has also felt the need to identify the potential shortcomings and the areas of competition law that would need reinforcement. In this context, the Competition Commission has embarked on a competition law review. This will enable the Commission to align itself with international good practices and other regional commitments.

Review of operations

During the past 10 years, the Competition Commission has conducted numerous pre-investigations (ie, enquiries to establish whether there are reasonable grounds to launch investigations) and investigations across the different sectors of Mauritius, including: media and information and communications technologies, food and beverages, insurance, banking and finance, and construction and property development. To date, the Competition Commission has launched around 266 pre-investigations and 54 investigations inclusive of merger, abuse of monopoly and cartel cases. With a total of 242 pre-investigation cases and 44 investigations completed, an overview of the most recent cases led by the Competition Commission is provided next.

Mergers

Since 2009, the Competition Commission has undertaken around 58 pre-investigations (Phase I review), 10 of which proceeded to investigations (Phase II review) in relation to merger trans­actions. During 2019, the Competition Commission screened about 260 transactions each month.

The Competition Commission has also collaborated with the CCC to review mergers that affect Mauritius. In that context, the Competition Commission has provided its input and views on 105 mergers notified to the CCC covering a range of sectors, including healthcare, retail, automotive, logistics and agro-industry, among others.

Pursuant to the attunement of the Competition Commission to occurrences in the Mauritian economy, the following transactions have recently been reviewed during the past year.

The Competition Commission was notified of the acquisition by Mauritian Eagle Insurance Ltd of a minority stake in Medscheme (Mtius) Ltd, which is a third-party health insurance administrator. The transaction was likely to confer upon Mauritian Eagle Insurance Ltd material influence over Medscheme (Mtius) Ltd and thus amount to a merger situation within the meaning of the Competition Act 2007. Medscheme (Mtius) Ltd was administrating medical schemes that could be in competition with the health insurance of the acquirer. As such, the competition concerns were that the target may have access to sensitive data regarding the medical scheme of its potential competitors. Given that the acquisition was of a minority stake and that the target was a new entrant in the market for health insurance, the Competition Commission accepted behavioural commitments from the parties.

The General Construction Company Ltd and IBL Ltd notified the Competition Commission of the proposed acquisition by IBL Ltd of a majority stake in General Construction Company Ltd. IBL Ltd through its subsidiaries and the General Construction Company Ltd were active in the construction sector, namely in mechanical electrical and plumbing works and in building construction works. Both these markets are characterised by bidding. The Competition Commission was concerned that the transaction may result in market transparency and leveraging of the market as these markets are complementary. IBL Ltd offered undertakings to address those concerns and the Commission cleared the transaction subject to those undertakings. However, in April 2020, IBL Ltd abandoned the transaction in view of the potential effects of covid-19 on the economy.

In an endeavour to further facilitate merger notifications, the Competition Commission is issuing a guidance note on merger notification that clarifies the Competition Commission’s policies on notification and elucidates the ‘business friendly’ approach used, while maintaining the rigour of a serious enforcer.

Abuse of dominance

The Competition Commission has been engaged in the review of 123 abuse of monopoly cases. Nineteen of these resulted in investigations, of which the Competition Commission completed 16. The outcome of the investigations varies between infringement decisions, imposition of remediation measures and undertakings offered by the parties.

In 2019, the Competition Commission issued its decision in relation to the payment cards investigation. The investigation was concerned with the set of agreements that Visa and MasterCard respectively concluded with 13 local banking and non-banking financial institutions participating in their respective payment networks. More specifically, the investigation focused on the level of issuer interchange fees (IIFs) set by Visa and MasterCard under their respective agreements with banking and non-banking institutions for point-of-sale (POS) transactions effected in Mauritius using locally issued classic debit and credit cards carrying the Visa and MasterCard brands.

The investigation found that the current levels of IIFs for local POS transactions constitute a major component of the merchant service charge (MSC), which in turn inflates the base on which merchant banks set the MSC. It is therefore preventing, restricting or distorting competition in the market for card-acceptance facilities. This is because some banks have both a large pool of cardholders and card-accepting merchants. Because of their larger cardholder base, the majority of card transactions processed at their local POS terminals are effectively using cards issued by them. They are therefore in a position to offer better MSC rates than small merchant banks as they recoup a significant proportion of the IIFs paid from their card-acquiring business through their issuing business. This, in turn, may be limiting the ability of small players to offer competitive MSC rates and compete more effectively.

In the light of the findings and the recommendations of the Executive Director, the Competition Commission directed VISA and MasterCard to limit the IIFs to a maximum of 0.5 per cent for debit and credit card transactions, to address the competition concerns identified in the payment cards market.

The Competition Commission issued another two decisions in 2017 relating to the financial and banking sector. One was in respect of its investigation of exclusivity clauses put in place separately by Western Union Company and MoneyGram Payment Systems Inc, preventing their agents in Mauritius from selling competing services. During the investigation, the Competition Commission received an undertaking from both parties to address the concerns identified by the Competition Commission. They undertook to remove the post-termination non-compete clause that prevented agents from offering competing services after termination of their agreement and to offer agents choices with respect to their agency agreements.

The other decision issued in 2017 was in respect of the Competition Commission’s investigation relating to merchant discounts charged by CIM Finance Ltd, whereby the finance company offered a commitment to change its conduct of charging significantly different merchant discounts. It undertook to bring down the maximum difference between the highest and lowest levels of merchant discounts to residual levels.

There is one investigation currently before the commissioners to determine whether a restrictive business practice is occurring or has occurred, and to impose any remedy they think fit to address the competition concerns in relation to the pricing of mobile telephony services in Mauritius. The investigation relates to alleged price discrimination between voice calls exchanged between customers subscribed to the same mobile telephony operator (on-net calls) and those between subscribers of rival operators (off-net calls). The determination process began in 2017 but has been delayed because of legal challenges by one party.

Mobile operators in Mauritius distinguish between on-net and off-net mobile voice calls in terms of tariffs. An on-net call is one placed by a subscriber of operator A to another subscriber of operator A (ie, a call that originates and terminates within the same public land mobile network (PLMN)). An off-net call is placed by a subscriber of operator A to a subscriber of operator B (ie, one that originates from the PLMN of one operator and terminates on the PLMN of another).

The Competition Commission’s enquiries found that the main parties to the investigation discriminate between the prices or traffic allowance between on-net and off-net calls for part of their commercial offers. This could potentially constitute an abuse of a monopoly situation.

The findings of this investigation revealed that first-time and existing subscribers were artificially induced to join or remain with a dominant player. The dominant player was found to be in a position of dominance in the local mobile telephony market, unlike a smaller player. The pricing model difference of the dominant player showed that it is encouraging subscribers to follow the choice of network of their family members and friends, which artificially maintained the market share of the operator.

The executive director of the Competition Commission recommended, among other remediation measures, that the dominant player be banned from discriminating between rates for on-net and off-net calls for an initial period of at least two years across the whole Mauritian contingent, including Rodrigues. The final report is presently before the commissioners.

Restrictive agreements

The Competition Commission has also been actively involved in the dismantling of cartels and has completed 10 investigations since 2009. Of the 47 pre-investigations conducted, 37 were closed and 21 have been progressed to investigations. The Commission is currently conducting seven cartel investigations.

In 2018, the executive director of the Competition Commission issued his final report in a cartel case involving two enterprises in the agrochemical industry. Financial penalties in excess of US$2 million have been recommended by the executive director. A hearing by the Commission was scheduled for June 2019 prior to a decision being issued by the commissioners. One of the parties to this investigation had applied for leniency and leniency plus. The commissioners held a procedural hearing on procedural matters raised by one party and, having given their ruling, they will now conduct a hearing on the merits of the case before making a determination on the matter.

The Competition Commission anti-cartel enforcement has focused lately on association of enterprises. Indeed, between 2018 and 2020, the executive director has conducted at least four investigations into conduct by trade associations operating in markets such as freight forwarding, customs house brokering, petrol retailing and school van operators. Most of the conduct reproached were exchanges of sensitive information through the respective associations, discussing prices at association meetings and having anticompetitive clauses in the associations’ constitutions, among others.

Advice to government

The law provides for the Competition Commission to advise the government about any action taken or proposed action that may adversely affect competition in the supply of goods and services. To date, the Commission has delivered advice to the government on various policy decisions in relation to the sugar, cement, scrap metal, cattle and pork sectors in Mauritius.

The most recent advice concerned the granting of import permits for processing-grade pork subject to an equivalent volume of slaughtered pigs to be purchased from local breeders. The regulatory measure was intended to protect local breeders and to secure an outlet for them to sell excess produce. However, the measure resulted in anticompetitive effects in reducing the ability of pork processors (except the leading entity, which was granted import permits without having to buy locally slaughtered animals) to compete in the supply of processed pork in Mauritius. With the exit of some local pork processors, local breeders could no longer rely on them to absorb their excess produce, thus rendering the regulatory measure ineffective and ultimately not for the benefit of local pig breeders.

The Commission issued advice to the ministry concerned, recommending that the policy be abolished and that other regulatory measures be considered to protect local pig breeders.

By way of issuing advice to the government, the Competition Commission strives to keep abreast of the state policies that might adversely affect competition.

Market studies

In addition to providing advice to the government, the Competition Commission is mandated to undertake general studies on the effectiveness of competition in individual sectors of the economy. To date, the Competition Commission has initiated five market studies. Three of these have been completed, two of which were related to the cement sector and saw the liberalisation of the market and one was related broadly to the construction industry. The two studies still under way focus on the pharmaceutical and airline industries. The latter is in the context of the Competition Commission’s participation in the cross-country airline study by the African Competition Forum (ACF).

The Competition Commission recently examined the current conditions of competition in the construction industry to identify any competition concerns locally. The findings revealed that the various markets within the construction sector are highly concentrated and the major players are vertically integrated across the supply chain. The prices of construction materials were found not to be subject to regulation and were determined by the market players. Contractors and consultants are legally required to be registered with the Construction Industry Development Board. Some of the concerns raised by the stakeholders were related to the restrictive effects of government-to-government contracts for local contractors and the disparity of working conditions between local and international contractors.

Enhanced detection of cartels

In recent years, the Competition Commission has repeatedly shone the spotlight on its leniency programme to detect other forms of collusion. The programme aims to incentivise cartelists to inform the Competition Commission about their cartel activity in exchange for total immunity from financial penalties or discounts of up to 100 per cent on financial penalties.

Since leniency was not available to cartel initiators, the Competition Commission has run time-limited amnesty programmes for cartel initiators on two occasions, in May 2012 and May 2017. The amnesty for cartel initiators allowed enterprises that have partaken in a cartel to benefit from a reduction in fines when they disclose the cartel to the Commission. This initiative has allowed the Competition Commission to gain much greater insight on cartels.

Since the beginning of 2018, the Competition Commission has amended its Guidelines on Collusive Agreements to specifically allow cartel initiators to benefit from leniency. From now on, cartel initiators may receive a discount of up to 50 per cent on financial penalties if they are first to disclose cartel activity to the Commission.

The Competition Commission has also been active in its fight against bid rigging. It has developed a working relationship with the procurement authorities in Mauritius to better detect bid rigging arrangements. Although the procurement authorities have relevant and first-hand information on all public sector bids received and are sometimes the first to detect signs of bid rigging, they do not have the required legislative tools and powers to tackle these problems. The collaboration therefore serves to bridge the gap between the authorities that have the relevant information about the bid rigging and the competition authority, which has the expertise and powers to investigate bid rigging. This collaboration has also assisted the Competition Commission to build up a database of bids, which is used for cartel screening purposes.

In the same vein, the Competition Commission has raised the awareness of procurement officers at different ministries and other public authorities about bid rigging and the tell-tale signs of bid rigging. These initiatives have assisted the Commission in gathering invaluable information about bids in the public sector and it is expected that the information gathered through this collaboration will assist in detecting and investigating bid rigging.

Cartel screening is another area being explored by the Competition Commission. It is in the process of putting in place a structured, reliable and results-oriented cartel screening mechanism which will assist in detecting more cartels in the medium to long term.

Competition advocacy

The Competition Commission has continued to reinforce a competition culture in Mauritius through its various advocacy initiatives targeting, among other things, public officials, consumer associations, the legal profession, accountancy firms and the business community in general.

Cognisant of the important role of accountancy firms in mergers and acquisitions, the Competition Commission has embarked on a series of workshops to increase awareness of merger control provisions in the Competition Act. These workshops are being conducted with major accountancy firms to highlight the importance of factoring the provisions of the Competition Act while advising on mergers and acquisitions and dealing with administration and the receivership of companies.

As part of its advocacy initiative – and, more particularly, in its endeavour to fight collusive practices in public procurement – the Competition Commission has embarked on a continuous programme to make procurement officials responsive to the relevant provisions of the Competition Act. The key objective is to provide government officials who are engaged in tender designs and processes with key notions pertaining to bid rigging practices among suppliers that would constitute offences under the provisions of the Act. This initiative also serves as an information-sharing platform between procurement officials and the investigative staff at the Competition Commission in the detection of potential bid rigging cases.

In collaboration with the Institute for Judicial and Legal Studies of Mauritius, the Competition Commission has shared perspectives on abuse of dominance provisions with barristers and other law practitioners, stressing the prime importance of economics. Basic knowledge of would-be abstract concepts such as the definition of relevant markets and the assessment of market power, and of competition itself, has been shared, and to pique the interest of the audience, simple yet effective real-life examples were used. The objective was to enable practitioners to recognise the needs of their clients in terms of competition law.

The Competition Commission has also conducted a series of interactive sessions with various ministries, regulators and consumer associations. The purpose of these sessions was to raise awareness of the provisions of competition law and to disseminate the enforcement work carried out by the Competition Commission. These interactive sessions also served as a platform to discuss potential competition issues that the different stakeholders may be facing or be aware of. The main purpose of the sessions with senior ministry officials was to discuss the importance of competitive assessment in policy-making.

Revamping competition law

During more than 10 years of competition enforcement, the Competition Commission has been able to gauge the effectiveness of the provisions of the Competition Act and to identify its potential shortcomings and areas that need reinforcement. In an attempt to remedy these shortcomings, adequately cater for emerging competition issues and be in line with international good practices and other regional commitments, the Commission is undertaking a review of the monopoly and merger regimes and their ensuing guidelines.

Changes are also being considered in respect of cartels. The Competition Commission wishes to introduce a settlement mechanism whereby parties will be able to settle cases in return for discounts on financial penalties. Currently the Commission has a leniency policy that is working fairly well. It is believed that the settlement procedure is likely to lead to quicker resolution of cases. The Commission is likely to benefit from a shorter, quicker administrative process and a reduced number of appeals to the court. It will enable the Commission to handle more cases with the same resources, thereby fostering public interest in its delivery of effective and timely punishment, while increasing overall deterrence.

The Competition Commission is exploring the notion of introducing fines for abuse of monopoly cases. Mauritius is one of the very few countries that do not impose financial penalties for abuse of monopoly situations. The Commission can only impose a remedy and this may not have the desired deterrent effect. It has been observed that some enterprises have been investigated several times under monopoly provisions. This is a clear indication that these enterprises have not been deterred from repeating their conduct.

It is a fact that there is no incentive for businesses to collaborate and therefore be involved in recidivism. This is because they know they will only be requested to amend their practices after an investigation has been completed.

Moreover, the Competition Commission is proposing to introduce mandatory notification of mergers. Unlike other jurisdictions, most mergers in Mauritius are confirmed without prior assessment by the Commission.

The Competition Act does not currently required enterprises intending to be party to a merger to notify the Competition Commission of the proposed transaction. The Commission has come across various mergers about which it has not been notified for different reasons. With the present law, there is a significant risk that there may have been several mergers that impede competition but have gone unnoticed by the Competition Commission.

It is therefore being considered that Mauritius should shift to a mandatory merger notification regime, subject to mergers meeting a certain threshold. A mandatory regime may be beneficial in terms of ensuring a standard policy for all mergers and would lead to a better degree of certainty. Among other things, it may also avoid the cost of unscrambling consumed mergers, balancing the cost of the review between merger parties and taxpayers, and expediting the review process.

The aim of all the above amendments is to make the Competition Act more effective and better equipped to tackle restrictive business practices in a more vigorous manner, resulting in more efficient markets, to the ultimate benefit of consumers and the economy in general.

The Competition Commission has already appointed a high-level consultant from the United Kingdom to conduct the review. A major part of the consultant’s mandate is to draw up detailed guidelines on the amended sections of the law that will eventually be officially published by the Competition Commission. The CCC is assisting the Competition Commission in this endeavour to come up with proposed amendments. Once the consultant has submitted the report, the new amendment bill will be sent to the relevant authorities and to Parliament to be passed as amendments to the Competition Act.

Cooperation

With a view to promoting collaboration and the exchange of information, the Competition Commission has entered into MOUs with various sector regulators. This is also an effective way to promote cooperation between institutions both nationally and internationally.

Over the years, the Competition Commission has valued cooperation with local sector regulators. To formalise these working relationships, formal MOUs have been signed with entities such as the Independent Commission Against Corruption Mauritius, the Mauritius Revenue Authority, the Information and Communication Technologies Authority, the Public Procurement Office, the Bank of Mauritius, the Financial Services Commission and the Ministry of Renewable Energy and Public Utilities. This has proved to be an efficient means of facilitating collaboration and sharing information about the Commission’s enforcement activities.

The Competition Commission also values cooperation with international regulatory bodies and sister competition agencies, and has formalised the same through the signing of MOUs. The formalisation of working arrangements between institutions has entrenched cooperation between the sister agencies to deal with anticompetitive conduct and to build the enforcement capacity within Mauritius.

As such, cognisant of the long-term objectives of Mauritius to foster regional trade, the Competition Commission signed an MOU with the CCC on 24 March 2017. The signing ceremony was held at the Voila Hotel in Bagatelle, where heads of no fewer than 10 African competition authorities were convened for the event. Prior to the signing of the MOU, the Competition Commission had already cooperated with the CCC on 30 merger notification cases. This MOU added to those the Competition Commission already had with the compe­tition authorities of South Africa, France, Seychelles Fair Trading Commission and Southern African Development Community member countries.

Although Mauritius has received assistance from various competition authorities in the past, the Competition Commission recently extended technical assistance in the form of training programmes to the Conseil de la Concurrence de Madagascar, the Trade Competition and Consumer Protection of Ethiopia and the Democratic Republic of Congo even in the absence of a formal MOU with those entities. The training programmes covered the various aspects of competition law enforcement (ie, abuse of dominance, collusive agreements and mergers), and the institutional structure and operating procedures of the Competition Commission. Insights were also shared regarding the Commission’s experience of conducting market studies and advocating for competitive markets.

In 2016, the Competition Commission started its second mandate as co-chair of the ACF. As a member of the Forum, the Competition Commission has contributed to the continuing cross-country sectoral market study. The aim of carrying out these studies is to evaluate the competitiveness of specific economic sectors of participating member agencies. In this context, the Competition Commission conducted a market study into the construction industry in Mauritius. The aim of the study was to gain an understanding of the current conditions of competition across the different markets and sub-markets in the construction sector to enable the identification of competition concerns, if any. The scope of the study included a review of the market structure, pricing, regulatory framework (permits, norms and standards), state support and public procurement.

Going forward

The Competition Commission has clearly ramped up its efforts in the detection of collusive agreements in recent years, with a good degree of success. Enforcement has increased and the Commission is positive that the business community at large is now profoundly aware of the harm collusive agreements may cause and, more importantly, the dire consequences they may face if they are found to be in contravention of the law. With the awareness that has been created, the Competition Commission intends to pursue horizontal cases with the full force of the law.

Another area of activity the Competition Commission expects will grow is that of cross-border cooperation. As a small island economy, the Commission suspects that Mauritius often suffers the harm caused by cross-border cartels, mergers and abuse of dominance. For obvious jurisdictional reasons, it will not be able to probe those suspicions on its own. There is therefore a need to foster deeper ties with regional competition authorities to detect and deter these practices if they do exist.

Amending the competition law framework has become a self-evident prospect. Highlights are likely to be the inclusion of financial penalties for abuse of dominance, the introduction of exemption regimes and institutional changes in favour of clearer responsibilities. With those changes, the Competition Commission will be equipped with new tools that, with its experience, will enable it to ensure higher levels of deterrence and compliance.

Since being founded in 2009, the Competition Commission has laid a solid foundation for competition law enforcement and will continue to do so in the coming years. It is confident that with the revamping of the competition law, cooperation with sister competition authorities and the continuous sharpening of its enforcement tools, strategies and resources, it will keep driving its mission to promote competition in the interests of consumers, businesses and the Mauritian economy.