Competition Council of COMESA introduces merger filing thresholds and reduces filing fees01 May 2015 | Newsletter/briefing
In 2013, COMESA1 launched a merger control regime run by the Competition Council of COMESA (the CCC). This regime had filing thresholds set at zero and very high merger filing fees. The COMESA Council of Ministers has now amended its competition legislation, introducing new merger thresholds, reducing filing fees and clarifying its merger filing form (Form 12). These changes address some of the key concerns raised by the legal community following the introduction of the merger control regime.
MERGER FILING THRESHOLDS
The new rules repeal the "zero thresholds" rule. A merger is notifiable if:
- the parties’ combined annual turnover or value of assets in the COMESA states exceeds US$50m
- at least two parties to the merger each have an annual turnover or value of assets in the COMESA states of US$10m
- the parties to the merger do not each have more than two thirds of their COMESA-wide turnover or assets located in the same COMESA member state
A transaction must also have a "regional dimension" to fall within the jurisdiction of the CCC. This means that at least one of the merging parties must "operate" in two or more COMESA states for the COMESA competition regulations to apply. The COMESA merger assessment guidelines state that a party "operates" in a member state if it achieves turnover of more than US$5m in that country.
Technically, all mergers with a regional dimension were notifiable to the CCC under the old rules - because the turnover and asset value thresholds were previously set at zero. The new thresholds therefore serve to limit the application of COMESA merger control. However, the CCC also has jurisdiction to require notification of mergers that do not fulfil the thresholds, but nonetheless appear likely to have a significant impact on competition or to be contrary to the public interest. Therefore it is not guaranteed that parties with turnover/assets below these thresholds are no longer required to notify the CCC.
REDUCED FILING FEES
The CCC has scaled down filing fees. These were previously set at 0.5% of the parties’ combined turnover or assets (whichever is the higher) in the COMESA region, up to a maximum of US$500,000. The filing fee is now set at 0.1% of the value of the parties’ combined turnover or assets (whichever is the higher) in the COMESA region, up to a maximum value of US$200,000.
The CCC has also revised Form 12, its merger filing form. The changes to Form 12 include a longer list of supplementary documents to be submitted to the CCC; including offer documents in the case of public bids, board presentations, reports analysing the merger and any other documents which may assist the CCC.
ENTRY INTO FORCE
The amendments to the merger filing thresholds and filing fees were approved by the COMESA Council of Ministers on 26 March 2015 and entered into force on the same day.
The amendments to the merger filing thresholds bring the COMESA merger regime closer to that of the EU. However, there are still some key differences between the two. The EU merger regime looks at both EU-wide and world-wide turnover, whereas COMESA has a more localised focus, only examining turnover and assets in COMESA member states. Unlike COMESA, the EU regime does not look at asset values. Furthermore, despite the amendments, COMESA’s merger thresholds are still very low. By way of comparison, the EU requires the parties each to have EU-wide turnover in the hundreds of millions and the parties to have combined worldwide turnover in the billions of Euro for a transaction to be notifiable.
Companies should also continue to be aware of the national merger regimes in place in a number of COMESA member states. Transactions that do not meet the COMESA filing thresholds might be subject to filing with one or more national competition regimes.
Although the legislative framework suggests that the CCC should operate as a "one-stop shop" for merger control in the region - meaning that the CCC has exclusive jurisdiction to review transactions meeting the thresholds and member states cannot apply their national rules - a number of member states have sought to challenge this position. As a result, businesses may need to notify their transactions both to the CCC and at member state level.
The amendments to the filing thresholds and the reduced filing fees are, however, an improvement to the COMESA competition regime and go some way to increasing regulatory certainty for businesses wishing to invest in the region.
1 The COMESA member states are Burundi, Comoros, Democratic Republic of the Congo, Djibouti, Egypt, Eritrea, Ethiopia, Kenya, Libya, Madagascar, Malawi, Mauritius, Rwanda, Seychelles, Sudan, Swaziland, Uganda, Zambia and Zimbabwe.
Lisa Wright (partner)
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