Catch Up With Competition Law Now - June 2020

​In this June issue

Taking stock of Covid-19 competition law developments over June

On 12 June 2020, the Minister of Trade, Industry and Competition published an amendment to the Regulations pertaining to the Covid-19 Block Exemption for the Retail Property Sector. Annexure A of the exemption has been replaced to include the cinema exhibition industry, clothing, footwear and home textiles, personal care services and restaurants as designated trading lines for the purpose of the identifying designated retail tenants.

On 22 June 2020, the Competition Commission (the Commission) announced that, since the beginning of the national disaster, it had received over 1556 complaints or tip-offs related to excessive pricing of basic food products, face masks and sanitisers. Of the 1556 complaints received, 791 are Covid-19 related cases while 325 were referred for further investigations or prosecution. To date, the Commission has referred and settled 18 Covid-19 related cases.

A decision in the second alleged excessive pricing contested matter involving the Dis-Chem Group has not yet been finalised, while the party involved in the third contested matter, Caprichem (Pty) Ltd (Caprichem), has agreed to settle with the Commission. Caprichem has agreed to pay a settlement amount, comprising of an administrative penalty and contribution to the Solidarity Fund totalling ZAR 600 000.00 for allegedly charging excessive prices on 5L hand sanitisers.​

The table below sets out the list of confirmed settlement agreements between parties and the Commission, since our last update in May 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 compliance programmes.

The National Consumer Commission also announced that it had entered into two settlement agreements in relation to the excessive pricing of masks and hand sanitisers. In terms of the agreements, Mopani Pharmacy has agreed to pay an administrative penalty of ZAR 52 700.00 and People's Pharmacy has agreed to pay ZAR 10 000.00.

New decision of interest: Constitutional Court delivers seminal prescription judgment

On 24 June 2020, the Constitutional Court (the CC) handed down a judgment which has a significant impact on the interpretation of the prescription provisions of the Competition Act and also examines the precise scope of a complaint initiation.

Local News

Agribusiness, food & beverages: Updates & developments

• The Commission recommended that the Tribunal conditionally approve Senwesbel Ltd (Senwesbel) & Senwes Ltd's (Senwes) acquisition of Suidwes Holdings (Ring Fenced) (Pty) Ltd (Suidwes). The Commission found that the proposed merger is likely to result in a substantial lessening of competition in the storage and associated grain trading markets (in which both parties operate) and is likely to result in the loss of competitive rivalry between Senwes and Suidwes. To address the Commission's concerns, the merger was approved subject to a number of conditions including a proposal by Senwes to create a significant black owned agricultural company and to invest in Suidwes' silo infrastructure. The Commission noted that the remedies would provide an opportunity for historically-disadvantaged persons (HDPs) to enter, participate and expand in the grain supply value chain, an industry which currently has minimal participation by HDPs.

• The Commission's Chief Economist, James Hodge, anticipates that the price of food is expected to fall as the economy recovers from the effects of the Covid-19 pandemic. Mr Hodge attributed the increased prices to, among other things, the depreciation of the rand and surging demand. He has observed that, as the economy has settled, prices of items such as fresh produce have been decreasing.

Construction & engineering: H&I's immunity from collusion prosecution confirmed

The Tribunal confirmed a settlement agreement between the Commission and Haw and Inglis Civil Engineering (Pty) Ltd (H&I), whereby H&I’s immunity has been finalised in relation to collusive bidding on a 2006 SANRAL tender. In 2011, after the Commission invited construction companies to volunteer information regarding suspected competition law contraventions, H&I was one of the first companies to come forward and inform the Commission of a bid-rigging arrangement in place with one of its competitors. The settlement agreement finalises the matter by confirming H&I’s conduct as a contravention and its immunity from a fine.

Leisure & tourism: HCI's "hostile takeover" of national lottery operator postponed

The Tribunal ordered an indefinite postponement of the merger proceedings, whereby HCI Invest 15 Holdco (Pty) Ltd (HCI) seeks to acquire negative control of Ithuba Holdings (Pty) Ltd (Ithuba) and its management and marketing agency, Zamani Marketing and Management Consultants (Pty) Ltd (Zamani). Ithuba and Zamani opposed the transaction, in terms of which HCI sought to attain management oversight rights of the firms, and applied for the sine die postponement in early June.

Transport: Updates & developments

• The Commission has welcomed an initiative by the Department of Small Business Development (DSBD) to support small and independent players in the automotive aftermarkets during the Covid-19 pandemic. The Commission acknowledged that the Automotive Aftermarkets Support Scheme by the DSBD, and other efforts by Government, will work to bring relief to some vulnerable entities in the automotive value chain.

• The Commission has amended the completion date of the Land Based Public Passenger Transport Market Inquiry (the Inquiry). In terms of the amendment, the Inquiry will be completed by December 2020.

Rest of Africa News

African Competition Forum: Competition regulators meet to address Covid-19 crisis

The Director General of the Competition Authority of Kenya (CAK), Wangómbe Kariuki, has advised competition regulators to continue playing their role in the post-pandemic era. This follows a recent virtual meeting of the heads of competition regulators across Africa, under the auspices of the African Competition Forum, to discuss efforts to mitigate the impact of Covid-19 and ensure that markets continue to function competitively. Mr Kariuki recommended, among other things, that competition regulators should be prepared to work with limited resources due to decreased government revenues, refocus their interventions in favour of highly impactful activities and enhance collaboration with regional competition agencies.

Egypt: Authority introduces leniency policy

The Egyptian Competition Authority (ECA) introduced guidelines on its "Total Exemption Policy". The policy aims to encourage parties to cooperate with the authority to detect horizontal agreements harmful to competition. The guidelines indicate that, in accordance with the relevant provisions of Egypt's competition legislation, offenders will be exempted from a penalty if they cooperate with the ECA, report violations and provide the necessary information and documents.

Kenya: Suppliers given more time to report delayed payments

The CAK has extended the time period for suppliers and manufacturers to provide information on late payments by retailers. At a recent meeting with the Kenya Association of Manufacturers (KAM), the Director General of the CAK urged suppliers and retailers to submit information to facilitate further action. He also indicated that the CAK is examining new supplier-retailer agreements extending payment timelines beyond 60 days.

Tanzania: Amendment to penalty provisions

The Finance Act 2020 has introduced amendments to the Fair Competition Act 2003. In terms of the amendment, where a person commits an offence against the Fair Competition Act, the penalty that the Fair Competition Commission may impose has been limited to a fine not exceeding 10% of the person / firm's annual turnover which has a source in the Mainland of Tanzania. The previous penalty provision implied that the calculation could extend to a person / firm's turnover outside of Tanzania.

Zimbabwe: Updates & developments

• New merger notification thresholds have been published. The new thresholds for notifiable mergers are applicable to merging parties whose: (i) combined annual turnover in or from Zimbabwe is valued at more than ZW$ 10 000 000.00 (approximately ZAR 477 000.00); or (ii) whose combined assets in Zimbabwe are valued at or more than ZW$ 10 000 000.00.

• New regulations relating to advisory opinions have been published. The Regulations enable parties to approach the Competition and Tariff Commission (CTC), for a written non-binding interpretation of the provisions of the Competition Act [Chapter 14:28]. The fee for an advisory opinion application is ZW$ 10 000.00 (approximately ZAR480.00)

• The CTC has prohibited Innscor Zimbabwe's acquisition of a 49% shareholding in Profeeds (Private) Ltd and Produtrade (Private) Ltd. The CTC also imposed a penalty of ZW$ 40.6 million (approximately ZAR 1 million) on the merger entities for failure to notify the merger within the prescribed period and proceeding to implement the merger without the CTC’s prior approval.

International news

Australia: Google's purchase of Fitbit raises competition concerns

The Australian Competition and Consumer Commission (ACCC) has outlined its preliminary concerns with Google's proposed acquisition of Fitbit. The ACCC is concerned that Google's access to consumer health data may raise barriers to entry, further entrench Google's dominant position and adversely affect competition in the digital advertising and health markets. The ACCC is also concerned that Google may favour its own wearable devices over competitors when supplying services. The ACCC's final decision will be announced in August 2020.

European Union: Updates & developments

• The European Commission (EC) opened two formal antitrust investigations against Apple. The first investigation is to assess whether Apple's rules for app developers via the App Store violate European Union (EU) competition rules, while the second investigation is to determine whether Apple's conduct in connection with Apple Pay violates EU competition rules. The EC has indicated that it will carry out in-depth investigations as a matter of priority.

• The EC has published an inception impact assessment, as well as an open public consultation questionnaire, inviting stakeholders to provide comments on the need for a new competition tool. The tool would enable the EC to address gaps in the current competition rules and to intervene against structural competition problems across markets in a timely and effective manner.

• The EC conditionally approved Elanco Animal Health Inc.'s acquisition of Bayer AGs animal health division. The decision is conditional on the divestment of otitis products and several types of parasiticides in the European Economic Area, the United Kingdom and globally. Both Elanco and Bayer's animal health division develop and supply pharmaceuticals for pets and livestock worldwide.

India: Multi-billion dollar tech merger approved

The Competition Commission of India approved a USD 5.7 billion (approximately ZAR 98 billion) deal between Jio Platforms Ltd (Jio) and Jaadhu Holdings LLC, an indirect wholly owned subsidiary of Facebook. Jio owns (directly or indirectly) and operates digital applications and holds controlling investments in certain technology related entities. It has been reported that the deal is said to be the largest foreign direct investment in the technology sector in India.

United Kingdom: Updates & developments

• The Competition and Markets Authority (CMA) imposed a total fine of GBP 5.5 million (approximately ZAR 116 million) on two musical instrument makers, Roland (U.K.) Ltd and Korg (UK) Ltd, for implementing resale price maintenance (RPM) to restrict retailer freedom to set prices online. GAK, a retailer of musical instruments, also admitted to engaging in RPM and has agreed to pay a maximum fine of GBP 278 945.00 (approximately ZAR 5.9 million).

• The CMA launched investigations into suspected breaches of competition law by four pharmacies and convenience stores relating to the suspected charging of excessive and unfair prices for hand sanitiser products during the Covid-19 pandemic.

• The CMA has secured the disqualification of two estate agent directors after finding that their firms took part in a cartel with two other local estate agents to set minimum rates for commission on the sale of residential properties. Both have now been disqualified for six and a half years for their roles in the cartel. The CMA has also secured the disqualification of a pharmaceutical company director who admitted his role in illegal arrangements affecting the supply of nortriptyline during his time as director at Auden McKenzie (Pharma Division) Ltd and Amilco Ltd.

United States of America: Updates & developments

• The Department of Justice announced that Christopher Lischewski, the former Chief Executive Officer and President of Bumble Bee Foods LLC, has been sentenced to serve 40 months in jail and pay a USD 100 000 (approximately ZAR 1.7 million) criminal fine for his leadership role in a three-year antitrust conspiracy to fix prices of canned tuna. The Assistant Attorney General of the Justice Department’s Antitrust Division said that, "executives who cheat American consumers out of the benefits of competition will be brought to justice, particularly when their antitrust crimes affect the most basic necessity, food".

• The DOJ also announced that a federal grand jury has indicted antitrust charges against four executives for their role in a conspiracy to fix prices and rig bids for broiler chickens. An indictment alleges that crimes have been committed, and all defendants are presumed innocent until proven guilty beyond a reasonable doubt - the offence charged carries a statutory maximum penalty of 10 years in prison and a USD 1 million (approximately ZAR 17.2 million) fine.

Insights

Articles

Daryl Dingley, Cara du Plessis and Elisha Bhugwandeen published an article titled, "Implications of the new policy objectives of the Competition Act"