During June 2016, ten competition authorities in the following countries in the Southern Africa Development Community (“SADC”) signed a memorandum of understanding (“MOU”). These ten authorities are from Botswana, Malawi, Mauritius, Mozambique, Namibia Seychelles, South Africa, Swaziland, Tanzania and Zambia.
The MOU provides that it takes effect once it has been signed by ten authorities and it remains in force for three years. An authority may terminate its participation on three months’ notice. SADC authorities which have not yet signed the MOU are from Angola, the Democratic Republic of Congo, Lesotho, Madagascar and Zimbabwe.
The MOU aims to strengthen relationships between SADC competition authorities by facilitating co-operation including through –
- the exchange of information on significant developments in competition law and policies, and on investigations of mergers and complaints;
- participation in conferences, seminars, etc on competition law and policies;
- participating in joint studies and research of common interests;
- co-operating and co-ordinating with one another in the investigation of mergers and complaints; and
- harmonising the rules and procedures for filing of mergers and applying for leniency or immunity.
The MOU also makes provision for SADC competition authorities to develop an annual work plan of activities and establish a joint working committee. However an authority is not obliged to participate in any such activities. A Joint Working Committee of authorities is also established.
The MOU contains protections for third party information including confidential information submitted as part of a merger investigation or cartel leniency process. An authority is however obliged to use “best endeavours” to obtain a waiver from the relevant third party. A recipient authority is obliged to maintain confidentiality of information received from another authority.
The signing of the MOU is an important step in the direction of more effective cross border enforcement of competition laws in SADC. Could this be the first step towards the establishment of a regional competition authority for SADC, similar to that of COMESA?
Article compiled by Seroshan Padayachy and Pieter Steyn (Directors) at member firm Werksmans Attorneys in South Africa.