The COMESA [1] Council of Ministers adopted various amendments at its meeting held on 26 March 2015 in Addis Ababa namely –
- an amendment to the COMESA Competition Rules on the Determination of Merger Notification Thresholds and Method of Calculation, 2012;
- an amendment to the COMESA Competition Rules, 2004 (Merger Filing Fees); and
- amendments to Form 12 – Notice of Merger. [2]
MERGER CONTROL UNDER THE COMESA COMPETITION FRAMEWORK
A merger is defined in terms of Article 23 of the COMESA Competition Regulations (“Regulations”), as the direct or indirect acquisition or establishment of a controlling interest by one or more persons in the whole or part of the business of a competitor, supplier, customer or other person.
In order for a proposed merger to qualify as a “notifiable merger” in terms of Article 23 of the Regulations, the following factors require consideration –
- the proposed merger must have a regional dimension. This entails that both the acquiring and the target firm or either the acquiring or the target firm must operate in two or more Member States; and
- the proposed merger must exceed the thresholds set in terms of the Regulations.
In terms of the regional dimension, a merger is notifiable to the Commission only if [3] –
- at least one merging party operates in two or more Member States [4];
- a target undertaking has an annual turnover in one Member State exceeding US$5 million;
- it is not the case that more than 2/3 of the annual turnover in the Common Market of each of the merging parties is achieved or held within one and the same Member State.
With regard to the financial thresholds, prior to the recent amendment, these were set at zero. [5] However, the recent amendments to the financial thresholds have changed this position.
NEW FILING THRESHOLDS
The updated Rules on the Determination of merger notification thresholds and method of calculation (“updated Rules”) were published on the COMESA website on 8 April 2015. The updated Rules provide that any merger, where both the acquiring firm and the target firm, or either the acquiring or the target firm, operate in two or more Member States, shall be notifiable if –
- the combined annual turnover or combined value of assets, whichever is higher, in the Common Market of all parties to a merger equals or exceeds US$50 million; and
- the annual turnover or value of assets, whichever is higher, in the Common Market of each of at least 2 parties to a merger equals or exceeds US$10 million, unless each of the parties to a merger achieves at least two-thirds of its aggregate turnover or assets in the Common Market within one and the same Member State.
Essentially under the new rules, merging parties will only have to notify the COMESA Competition Commission if either their combined annual turnover or combined assets in the Common Market is at least US$50 million and where each of at least 2 parties have an annual turnover or asset value in the Common Market of at least US$10 million.
The updated Rules also provide for the method of determination and valuation of annual turnover and assets.
LOWER MERGER FILING FEES
In the COMESA newsletter published on 11 March 2015 [6], it was noted that at the 18th Meeting for COMESA Ministers of Justice and Attorneys-General in Khartoum the COMESA Secretary General, Mr Sindiso Ngwenya, stated that “COMESA was considering passing a recommendation to reduce the mergers and acquisitions fees from US$ 500 000 to US$ 200 000 as notifying companies have complained of high fees to the COMESA Competition Commission.”
There has been no official publication from the COMESA Competition Commission in relation to this amendment. Mr Willard Mwemba, the Head of Mergers and Acquisitions for the COMESA Competition Commission, has confirmed that there has been a delay in publishing this amendment and that it should be published within the next 14 days.
Prior to the amendment, the filing fee was calculated at 0.5% of the combined annual turnover or combined asset value (whichever was higher) of the merging parties in the Common Market and was capped at a maximum fee of US$500 000.
The amendment changes this position and provides that a merger filing fee is to be calculated at 0.1% of the combined annual turnover or combined asset value (whichever is higher) of the merging parties in the Common Market, capped at a maximum fee of US$200 000. This amendment will most certainly be welcomed by businesses.
THE AMENDMENTS ARE EFFECTIVE
We understand from Mr Willard Mwembe that the above amendments are currently effective. It is a relief that the COMESA Competition Commission has taken into account the criticisms and concerns in relation to the merger notification thresholds as well as the high merger filing fees and responded pro-actively to these concerns and criticisms. It is suggested that the recent amendments do go a long way in contributing to a more business-friendly framework.
Written by Ahmore Burger-Smidt, Director: Werksmans Advisory Services (Pty) Ltd; Kriska-Leila Goolabjith, Associate
Notes:
[1] COMESA is the Common Market for Eastern and Southern Africa. COMESA consists of the following Member States – Burundi, Comoros, DRC, Djibouti, Egypt, Eritrea, Ethiopia, Kenya, Libya, Madagascar, Malawi, Mauritius, Rwanda, Seychelles, Sudan, Swaziland, Uganda, Zambia and Zimbabwe.
[2] Please visit the COMESA Competition Commission website for further details – http://www.comesacompetition.org/?p=898
[3] Section 3.12 of the COMESA Merger Assessment Guidelines published in August 2014 and prepared in accordance with the COMESA Competition Regulations, 2004
[4] An undertaking “operates” in a Member State if it has annual turnover in that Member State exceeding US$5 million
[5] Section 3.4 of the COMESA Merger Assessment Guidelines published in August 2014 and prepared in accordance with the COMESA Competition Regulations, 2004
[6] Issue 442