Catch Up With Competition Law Now - August 2020

In this August issue:

Taking stock of Covid-19 competition law developments over August

As at 20 August 2020, the Competition Commission (Commission) announced that it has referred and settled 34 Covid-19 related cases to the total value of over ZAR 15.4 million (of which ZAR 5 583 380 has been donated to the Solidarity Fund). There have also been donations of essential goods to the value of ZAR 567 886.

Dis-Chem Pharmacies Ltd (Dis-Chem) announced the withdrawal of its appeal to the Competition Appeal Court (CAC) against the Competition Tribunal's (Tribunal) decision that the company had engaged in excessive pricing of face masks. Dis-Chem's Chief Executive Officer stated that the company had not overcharged or broken the law, but that it would rather move forward by paying the ZAR 1.2 million administrative penalty imposed by the Tribunal.

The table below sets out the confirmed settlement agreements between parties and the Commission, since our last update in July 2020. In addition to administrative penalties and donations, parties have also agreed to reduce their mark-ups and gross profits, desist from the excessive pricing conduct and implement competition law compliance programmes.

  Parties Products/ industry Administrative penalty / donation

1

Mzanzi Meat and Chicken (Pty) Ltd t/a Roots Dawn ParkEggsDonation of ZAR 12 000.00 to the Solidarity Fund.
2Rand Safety Equipment CCPersonal protective equipmentDonation of ZAR 8 284.00 to the Solidarity Fund.
3Oil and More General Trading CC Nitrile glovesDonation of ZAR 18 361.51 to the Solidarity Fund.
4Levtrade International (Pty) LtdFace masksAdministrative penalty of ZAR 50 000.00. Donation of ZAR 10 000.00 to the Solidarity Fund and a donation of essential goods valued at ZAR 25 000.00 to the Johannesburg Children's Home.


New decision of interest: Competition case cannot be reinstated once withdrawn

The CAC dismissed an appeal by the Commission against a Tribunal decision to decline hearing a matter after it was withdrawn. In this matter, Beefcor (Pty) Ltd and Cape Fruit Processors (Pty) Ltd were alleged to have engaged in cartel conduct. The week before the hearing, the case was withdrawn pursuant to an invitation by the Commission's senior investigator to engage in settlement proceedings. A month later, the Commission filed an application for reinstatement of the original referral. The CAC found that jeopardy attaches at the time the Tribunal acquires jurisdiction (the time of the delivery of the complaint referral). Withdrawal of these documents must be construed to have the effect that the proceedings are brought to an end i.e. ‘completed’ as contemplated in the Competition Act and cannot be reinstated or referred again to the Tribunal.

 

Africa news

Agribusiness, food & beverage: Updates & developments

  • South Africa - The Tribunal conditionally approved Senwesbel Ltd's (Senwesbel) (and its subsidiary, Senwes Ltd's) acquisition of Suidwes Holdings (Ring Fenced) (Pty) Ltd (Suidwes). The Commission initially recommended that the merger be approved subject to conditions, but thereafter recommended that the merger be prohibited. The Tribunal approved the merger subject to a range of conditions relating to pricing, the divestiture of certain grain silos, employment and the provision of production loans to previously disadvantaged farmers.
  • South Africa - The Tribunal unconditionally approved Unilever PLC's acquisition of all the assets, liabilities and legal relationships of Unilever N.V. The transaction constitutes an intra-group reorganisation involving the two ultimate parent companies of the Unilever Group. Following implementation, the shareholders of Unilever N.V. and Unilever PLC will be shareholders of Unilever PLC, which will become the new ultimate controller of the Unilever Group.
  • South Africa - The South African Sugar Association (SASA) has applied to the Commission to be exempted from certain provisions of the Competition Act. SASA represents the interests of all sugar millers and refiners in South Africa. The exemption application relates to the sharing of competitively sensitive information in order to engage on certain issues (e.g. managed reduction, reallocation of capacity etc.) in the industry.

Construction and engineering: Updates & developments

  • Namibia - The Namibian Competition Commission (NaCC) prohibited the proposed acquisition of Schwenk Namibia (Pty) Ltd by West China Cement Ltd. The NaCC found that the proposed transaction would likely substantially prevent or lessen competition in the cement market due to the fact that the acquisition could possibly result in co-ordination between Ohorongo Cement (Pty) Ltd and Whale Rock Cement (t/a Cheetah Cement).
  • Zambia - The Competition and Consumer Protection Commission (CCPC) announced that it is still actively undertaking investigations regarding the simultaneous hike of cement prices. The CCPC has been investigating possible cartel conduct in the sector since 2019, after it conducted raids on a number of large cement firms.

Financial services: Updates & developments

  • South Africa - The Tribunal conditionally approved Capitalworks Atlanta GP (Pty) Ltd's acquisition of Peregrine Holdings. The Commission found that the proposed transaction raises employment concerns and recommended that the Tribunal approve the merger subject to a condition placing a moratorium on merger-related retrenchments for a period of two years.
  • South Africa - The Tribunal confirmed a consent agreement between the Commission, Retail Capital (Pty) Ltd (Retail Capital) and First Asset Finance (Pty) Ltd (FAF). The firms admitted to implementing their merger before approval from the Commission and agreed to pay an administrative penalty of ZAR 742 500. Retail Capital and FAF have, among other things, also agreed to notify the Commission of any future transactions that constitute a notifiable merger.

Healthcare: FCCPC conducts on-site inspections of pharmacies

Nigeria - The Federal Competition and Consumer Protection Commission (FCCPC) conducted on-site investigations on Ebus and Avis Pharmacy, multiple locations of Health Plus Ltd, Tonia Pharmacy, H-Medix, and New Health Pharmacies. The FCCPC's investigation follows concerns raised in relation to excessive and unconscionable pricing of potentially vital medication. During its inspections, the FCCPC discovered what appeared to be inconsistent pricing of Hydroxychloroquine and other products that are considered relevant to managing COVID-19.

Regulatory: Updates & developments

  • Kenya - The Competition Authority of Kenya (CAK) announced that from 1 September 2020, it will cease receiving physical applications relating to its technical processes, including merger filings and exemptions, as well as registering restrictive trade practices, abuse of buyer power and consumer complaints. The CAK will be receiving and processing applications lodged through its Case Management System.
  • Mauritius - The Competition Commission of Mauritius (CCM) amended its Guidelines on Mergers (the Guidelines). The amendments relate to the sections in the Guidelines on "control" and "failing firms" to ensure that the provisions are clear and properly aligned with the Mauritian Competition Act, 2007 (Mauritian Competition Act). The amended Guidelines are available here .
  • Namibia - The NaCC has requested that stakeholders provide electronic submissions on the Draft Namibian Competition Bill (Draft Bill) on or before 25 September 2020. Once all written submissions are received and actioned upon, a stakeholders' workshop will be convened to discuss the Draft Bill. A copy of the Draft Bill is available here.
  • Nigeria - The FCCPC received an award from the Federal Government of Nigeria for outstanding performance during the Covid-19 pandemic. The FCCPC welcomed the award and stated that it will continue to intensify its efforts.

Retail: CAK directs stakeholders to submit retail code of practice

Kenya - The CAK has directed the Retail Trade Association of Kenya, Kenya Association of Manufactures and Association of Kenya Suppliers to submit a binding Code of Practice (Code) for publication by the CAK. Once adopted, the Code will form the basis of the CAK's enforcement actions in the retail industry.

Telecommunications, media and technology: Telkom / Airtel merger abandoned

Kenya - Telkom Kenya Ltd (Telkom) and Airtel Networks Kenya Ltd have mutually agreed to abandon their merger after facing challenges in obtaining the requisite approvals for the transaction. In a press release, Telkom stated that as a consequence of the challenges faced, it has opted to adopt an alternative strategic direction and will no longer pursue the merger.

Transport: Updates & developments

  • Mauritius - The CCM has raised concerns regarding standard trading conditions, relating to pricing and fees, set by the Association of Freight Forwarders (AFF) and the Customs House Brokers Association (CHBA). The CCM found that the conduct of members of the AFF and CHBA was in contravention of the Mauritian Competition Act. The associations have undertaken to revise the clauses and have proposed additional measures to ensure competition law compliance.
  • South Africa - The Tribunal confirmed a settlement agreement between the Commission and Life Wise (Pty) Ltd t/a Eldan Auto Body (Eldan). Eldan admitted that it had engaged in price-fixing, dividing markets and collusive tendering. Eldan and a competitor coordinated their collusive arrangement through the Vehicle Accident Assessment Centre and direct interactions between employees of the two firms. Eldan has agreed to pay an administrative penalty of ZAR 750 000.
  • South Africa - The Tribunal confirmed a consent agreement between the Commission and Kalundu Trading (Pty) Ltd, a trader in alternators and starter motors. The firm admitted to dividing markets with a competitor by allocating customers in the market for the supply of alternators and starter motors, and agreed to pay an administrative penalty of ZAR 458 979.52.
 

International News

Australia: Competition authority defends new media code

The Australian Competition and Consumer Protection Commission (ACCPC) has responded to a statement by Google in relation to a draft mandatory code published by the ACCPC last month. The code is aimed at addressing bargaining power imbalances between Australian news businesses and Google and Facebook. Following claims published by Google, the ACCPC has clarified that in terms of the code, Google will not be required to charge Australians for the use of its free services or share any additional user data with Australian news businesses.

European Union: Google / Fitbit merger scrutinised

The European Commission (EC) has opened an in-depth investigation to assess the proposed acquisition of Fitbit by Google. The EC is concerned that the transaction would entrench Google's market position in the online advertising market. In particular, the EC noted that the transaction could increase the amount of data that Google could use for the personalisation of the advertisements it displays.

India: Amazon facing new competition probe

It has been reported that a group of more than 2000 sellers have filed a complaint with the Competition Commission of India against Amazon. The sellers allege that by Amazon favouring retailers that offer online discounts, independent sellers are being driven out of the market. The sellers also claim that Amazon charges lower fees to selected sellers.

United Kingdom: Updates & developments

  • The Competition and Markets Authority (CMA) imposed a penalty of GBP 300 000 (approximately ZAR 6.7 million) on JD Sports Fashion plc (JD Sports) for failure to comply with a CMA enforcement order relating to JD Sports' merger with Footasylum Ltd. Although the order stated that JD Sport could not make any changes to Footasylum's portfolio of stores without permission, a store was closed in 2019.
  • The CMA published its provisional findings as part of its market investigation into funeral services. The CMA found that, among other things, the fees charged by funeral directors and crematoria increased at a rate well above inflation for at least a decade. The CMA has been forced to delay plans to impose a price cap on standard funeral services due to the Covid-19 pandemic.

United States of America: Updates & developments

  • The United States 9th Circuit Court of Appeals (the Court) reversed a ruling against phone chip supplier Qualcomm Inc. (Qualcomm). The Court found that, among other things, Qualcomm had no duty to licence its patents to rival chip suppliers and that it was not anti-competitive to require phone makers to sign a license agreement. The Federal Trade Commission had alleged that Qualcomm's licensing practices were anti-competitive.
  • Epic Games, the developer of the game Fortnite, has filed federal antitrust law suits against Apple and Google. After Epic began offering customers the option to buy the game directly, Fortnite was removed from the Apple and Google app stores. The dispute centres around the rule that apps must offer billing through Apple and pay the tech company 30% of revenue. Although Apple has stated that Epic was removed because it expressed the intent of violating Apple's App Store guidelines, Epic alleges that Apple's pricing practices are anti-competitive.
 

Our Recent Work

Competition Commission / NPC

Robert Wilson, Andriza Liebenberg and Lebohang Makhubedu successfully represented NPC-Cimpor (Pty) Ltd (NPC) in an appeal before the CAC. The Commission had argued before the Tribunal that NPC had engaged in price-fixing and market allocation with the other cement producers in South Africa, and subsequently appealed to the CAC the Tribunal's decision dismissing the case against NPC.

The CAC similarly dismissed the Commission's appeal, finding that the Commission had failed to produce evidence to demonstrate that NPC, by its conduct during the complaint period, had intended to contribute to the objectives of the cartelists.

Afrocentric / Dental Information Systems

The Tribunal unconditionally approved AfroCentric Health (RF) (Pty) Ltd's (AfroCentric) acquisition of Dental Information System Holdings (Pty) Ltd (DENIS).

Daryl Dingley, Burton Phillips and Makati Seekane represented DENIS, a subsidiary of EOH Holdings Ltd.

AfroCentric is controlled by ACT Health Care Assets (Pty) Ltd, and forms part of the AfroCentric Group, an investment holding company invested in various sectors of the healthcare industry, including through Medscheme, an administrator and managed care organisation. DENIS is a registered managed care organisation specialising in managing dental benefits.

The Commission received various concerns from third parties. It was, however, of the view that the proposed transaction was unlikely to substantially prevent or lessen competition and noted that there were no public interest concerns. The Commission recommended to the Tribunal that the proposed transaction be unconditionally approved. The Dental Professionals Association applied to intervene in the Tribunal proceedings and was permitted to make written and oral submissions on limited grounds. The Tribunal ultimately agreed with the Commission and the merger parties and approved the transaction unconditionally.

 

Insights

James Baikoff published an article in Without Prejudice titled, "The Escalating Enforcement of Competition Law".