Mauritius: Over a Decade of Competition Enforcement

In summary

This article reviews the operations and activities of the Competition Commission of Mauritius. Recent cases handled by the Commission in relation to abuse of dominance, restrictive agreements and anticompetitive mergers are discussed. The article outlines the various market studies conducted and the Commission’s intention to promote pro-competitive public policies through its advisory role. Competition advocacy initiatives are also highlighted, as are cooperation agreements with foreign authorities. Also covered are the various initiatives being taken by the Commission to strengthen its enforcement capacity 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
• Memoranda of understanding

The Competition Commission of Mauritius (the Competition Commission) has been in existence for just only around a decade. Since being founded in 2009, it 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 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 the government, further to any action or proposed action it makes that may adversely affect competition. The Competition Commission has repeatedly advised the 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 has carried out several advocacy initiatives targeting businesses, associations and the public in general. To improve its performance, it has put a lot of effort into building up its institutional capacity, involving the upgrade of skills to keep pace with a rapidly evolving business landscape and organisational strengthening to reinforce its capabilities.

With economies moving ever closer together and becoming more interdependent because of 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 by setting up working groups on functional and instrument-based structures. The groups are geared towards specialisation, accountability and ownership while maintaining 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 need reinforcement. In this context, it has embarked on a review of competition law, which will enable it to align itself with international good practices and other regional commitments.

Review of operations

Over the past 11 years, the Competition Commission has conducted numerous pre-investigations (ie, inquiries to establish whether there are reasonable grounds to launch investigations) and investigations across different sectors in Mauritius, including: media and information and communications technologies, food and beverages, insurance, banking and finance, and construction and property development. It also conducts market studies, advises the government on competition matters and assesses COMESA matters that affect Mauritius, such as mergers across member states.

To date, the Competition Commission has launched around 287 pre-investigations and 57 investigations involving mergers, abuses of monopoly and cartel cases. It has completed 260 pre-investigation cases and 45 investigations and four market studies, issued five pieces of advice to the government and handled 139 COMESA matters. This article will provide an overview of the most recent cases led by the Competition Commission is provided next.

Mergers

With regard to merger transactions, the Competition Commission has conducted around 74 pre-investigations (Phase I review), out of which 10 were proceeded to investigations (Phase II review), since 2009. In 2020, it screened nearly 800 transactions.

The Competition Commission has also collaborated with the CCC to review mergers that may potentially affect Mauritius. In this context, it has, to date, provided its input and views on 140 mergers notified to the CCC covering a range of sectors, including healthcare, retail, automotive, logistics and agro-industry.

At the investigation level, the Competition Commission was notified jointly by General Construction Company Ltd and IBL Ltd of the proposed acquisition of a majority stake in General Construction Company Ltd by IBL Ltd. General Construction Company Ltd and the subsidiaries of IBL Ltd are active in the construction sector, particularly in mechanical, electrical and plumbing works and building construction works. Both of those markets are characterised by bidding. The Competition Commission was concerned that the transaction may result in market transparency and leveraging of the market inasmuch as those markets are complementary.

In the end, in a bid to address the potential competitive concerns, IBL Ltd offered undertakings to the Competition Commission and, as a result, the transaction was cleared. However, in April 2020, IBL Ltd abandoned the transaction owing to the potential effects of the covid-19 pandemic on the economy.

In April 2021, the Competition Commission issued its decision in relation to the potential acquisition by New Goodwill Investment Co Ltd of a majority stake in Medine Distillery Co Ltd. Medine Distillery Co Ltd is engaged in the production of extra neutral alcohol from molasses. This alcohol is, in turn, used as an input for the manufacture of rum.

New Goodwill Investment Ltd has 33.33 per cent shares in Grays Distilling Ltd, which is the main competitor of Medine Distillery Co Ltd. It also controls two of the main producers and suppliers of rum, which is in the downstream market. As such, it was found that the transaction would lead to competition concerns, including unilateral effects, vertical foreclosure and coordinated effects. The Commission conditioned the transaction upon New Goodwill Investment Co Ltd divesting all its shares in Grays Distilling Ltd. The decision is being appealed before the Supreme Court by the party.

Abuse of dominance

The Competition Commission has been engaged in the review of 140 abuse of monopoly cases. Twenty-one of those resulted in investigations, of which the Competition Commission completed 18. The outcome of the investigations varies between infringement decisions, imposition of remediation measures and undertakings offered by the parties.

In one recent case, the Competition Commission determined in April 2021 that there was no abuse of market power on the part of an online property listing portal. Based on an extensive information gathering process, including a survey among property listers, it was concluded that competition for the provision of online property listing services was not harmed. Contrary to the allegation, property listers were not coerced through conditional offers for listing properties exclusively on the dominant operator’s platform.

In 2020, the Competition Commission concluded its investigation in relation to an exclusive sales and purchase agreement between the only local supplier of treated fly ash and a dominant supplier of cement. The competition concern was that the agreement prevented the competing cement operator from having access to the locally produced fly ash for use as a cement additive in the supply of composite cement. This could affect the latter’s ability to compete on a level playing field with the other cement operator and, consequently, weaken competition in the local cement market. To address the concern, the local supplier of treated fly ash agreed to supply to the aggrieved cement operator a specified percentage of its production at a price not less favourable to those offered to its competitor.

Earlier in 2019, the Competition Commission issued its decision in relation to the Payment Cards investigation. The investigation concerned 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, it 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 those banks’ 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, which, in turn, may limit 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 that prevented 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 in respect of 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.

One investigation is 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 telephone services in Mauritius. The investigation relates to alleged price discrimination between voice calls exchanged between customers subscribed to the same mobile telephone 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 inquiries 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 the 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 telephone 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 been actively involved in the dismantling of cartels and has completed 17 investigations since 2009. Of the 73 pre-investigations conducted, 47 were closed and 26 have been progressed to investigations. It is currently conducting nine cartel investigations.

The Competition Commission is currently focusing its anti-cartel enforcement work in bid rigging. Its collaboration and interaction with the public procurement agencies in Mauritius has enabled it to access data on a large number of public bids in Mauritius. On this basis, it has been able to screen for potential bid-rigging cases and, in that regard, some investigations will be launched soon.

The Competition Commission is also working with the CCC with regard to cross-border investigations. With the CCC now active in the investigation of restrictive business practices other than mergers, Mauritius has taken the lead in devising guidelines on how cooperation between the two institutions will occur in respect of cross-border investigations, taking into account the COMESA Competition Regulations and Rules and the laws prevailing in Mauritius.

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 advice regarding the pork sector 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 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, it has carried out five market studies. Two studies relate to the cement sector and saw the liberalisation of the market, and one study is broadly in relation to the construction industry. The other two studies, which are near completion, 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).

In the pharmaceutical market study, the Competition Commission reviewed the legislative framework governing the sector; analysed the market structure and concentration along the pharmaceutical supply chain; and identified potential competition concerns. The issues identified are broadly in relation to improving the transparency of product registration, the pricing of pharmaceutical products and the importation regime. The study provides some recommendations to address the competition concerns. Some of the proposals, such as regressive mark-up pricing and parallel imports, require further in-depth analysis by the competent authorities.

The construction market study revealed that the various markets within the 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 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 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 previously 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. Since then, 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.

Competition advocacy

The Competition Commission has continued to reinforce a culture of competition 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. The 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. People in marketing and sales were also sensitised, whereby they were cautioned against commercial decisions that may be anticompetitive, which has helped to promote compliance.

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 Competition 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 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 those sessions was to raise awareness of the provisions of competition law and to disseminate the enforcement work carried out by the Commission. The 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 policymaking.

Advocacy activities have also been directed towards the public. The Competition Commission has organised several radio campaigns and published articles in the local newspaper to explain the concept of competition and create better awareness on specific aspects of competition law in Mauritius. A workshop has also been held for journalists and media professionals with the aim of fostering a better understanding of competition law and, thus, allowing them to better communicate on the matter to the public.

Revamping competition law

During over a decade of competition enforcement, the Competition Commission has been able to gauge the effectiveness of the provisions of the Competition Act and identify its potential shortcomings and areas that need reinforcement. In an attempt to remedy those 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 through which parties will be able to settle cases in return for discounts on financial penalties. At present, 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 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 few countries that do not impose financial penalties for abuse of monopoly situations. The Commission can only impose a remedy, which 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 those enterprises have not been deterred from repeating their conduct.

There are no incentives for businesses to collaborate and reduce recidivism. This is because they know they will only be requested to amend their practices after an investigation has been completed.

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 require enterprises intending to be party to a merger to notify the Competition Commission of the proposed transaction. The Commission has come across various mergers on which it has not been notified for different reasons. Under the present law, there is a significant risk that there may have been several mergers that impede competition but that 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 review has reached an advanced stage, with the consultant appointed to conduct the review having already submitted a first draft of the amendments. The Competition Commission is in the process of finalising the review to be sent to the relevant authorities. It will now start work on the various guidelines and procedural rules that will accompany the revised law.

Cooperation

To promote 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 Commission has valued cooperation with local sector regulators. To formalise those 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 it 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 build 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 the 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 that 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 Congo, even in the absence of formal MOUs with those entities. The training programmes covered various aspects of competition law enforcement (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, it has contributed to the continuing cross-country sectoral market study. The aim of carrying out those 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. Currently, the Competition Commission is participating in the ACF cross-country study of the airline industry.

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 Commission expects will grow is that of cross-border cooperation. As a small island economy, the Commission suspects that Mauritius often suffers from the harm that arises from cross-border cartels, mergers and abuse of dominance. For 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 those 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.