In this October issue:
Taking stock of Covid-19 competition law developments over October
On 20 October 2020, the Portfolio Committee on Trade and Industry met virtually with the Department of Trade, Industry and Competition (DTIC), the Competition Commission (Commission) and the Competition Tribunal (Tribunal) for a briefing on the implementation of the Competition Amendment Act 2018 and investigations relating to the Covid-19 pandemic. The Commission confirmed that it had received 1 734 Covid-19 related complaints and tip-offs since March 2020. 35 settlement agreements, to the total value of approximately ZAR 15.5 million, have been confirmed by the Tribunal.
Since our September 2020 update, the Tribunal confirmed one Covid-19 related consent agreement between Swift Chemicals (Pty) Ltd (Swift Chemicals) and the Commission. In terms of the consent agreement, Swift Chemicals, a distributor of industrial solvents, has agreed to pay an administrative penalty of ZAR 300 000.00 and has made various donations including a donation of ZAR 300 000.00 to the Solidarity Fund and a donation of ZAR 100 000.00 to the Nelson Mandela Fund. In addition to the donations, Swift Chemicals also agreed to monitor its gross profit margin, desist from the excessive pricing conduct and implement a competition law compliance programme.
Agribusiness, food & beverage: Updates & developments
- Nigeria: The Chief Executive Officer of the Federal Competition and Consumer Protection Commission (FCCPC), Babatunde Irukera, held virtual discussions with the Flour Millers Association of Nigeria (FMA). Mr Irukera cautioned against price-fixing and indicated that there may be a possibility of an expanded investigation into the industry. During the discussion, the FMA pledged adherence to the rules.
- South Africa: The Commission granted the South African Sugar Association (SASA) and its members a conditional exemption until 31 June 2021. The exemption has been granted subject to conditions to ensure that the information SASA and its members share is limited to that which is necessary to give effect to the purposes of the South African Sugarcane Value Chain Master Plan to 2030.
Engineering & Construction: Updates & developments
- South Africa: The Tribunal confirmed a settlement agreement between the Commission and cable manufacturer, Aberdare Cables (Pty) Ltd (Aberdare). This forms part of a long running cable cartel case against Aberdare and three other companies. In March 2012, Aberdare applied for corporate leniency and was granted conditional immunity by the Commission from prosecution before the Tribunal. Aberdare admitted to engaging in price-fixing, market allocation and collusive tendering.
- Zambia: The Competition and Consumer Protection Commission (CCPC) provided an update on its cement cartel investigation. The CCPC advised that it has continued to receive complaints and queries from the general public and has urged people with further information on the alleged cartel to contact the CCPC. The CCPC has interviewed representatives of the firms involved and is still in the process of conducting further interviews.
Healthcare: Commission progresses Health Market Inquiry recommendations
South Africa: It has been reported that the Commission is taking steps to address the findings of the Health Market Inquiry (HMI). In September 2020, the Commission issued a notice informing stakeholders that it has approached the Council for Medical Schemes to establish a "multi-stakeholder working committee". The purpose of this committee is to develop the negotiation framework proposed in the HMI report. It is intended that the framework will provide a platform for prices of private healthcare services to be negotiated in attempt to control costs.
Industrials: Commission prohibits waste management merger
South Africa: The Commission prohibited the proposed merger whereby Averda South Africa (Pty) Ltd (Averda) intends to acquire A-Thermal Retort Technologies (Pty) Ltd, A-Thermal Resources (Pty) Ltd and Cecor Allied Technologies (Pty) Ltd (Cecor). The merger parties both treat general hazardous waste and hazardous healthcare risk waste. The Commission found that, among other things, the merger:
- will result in the merged entity having high market shares in most of the relevant markets assessed; and
- has a negative effect on the ability of SMME and/or HDI competitors to effectively enter into, participate in or expand within the waste management (and treatment) sector.
Mining: Updates & developments
- South Africa: The Tribunal dismissed the South African Energy Forum's (SAEF) application to intervene in the Tribunal's proceedings involving the proposed large merger between Thabong Coal (Pty) Ltd and South32 SA Coal Holdings (Pty) Ltd. The Tribunal, earlier in the same proceedings, struck out allegations of political interference against the Commission made by SAEF in its intervention application. The Tribunal has however, granted the Phola community, Phola Mining Community Development Trust and the Phola Ogies Rural Mining Forum Community Cluster (the Phola Communities) leave to intervene in the proceedings on limited grounds. The Phola Communities will be able to file written submissions relating to certain public interest-related considerations and may also make oral submissions at the hearing on those issues.
- South Africa: The Tribunal conditionally approved IRL (South Africa) Resources Investments (Pty) Ltd's (IRL) proposed acquisition of the movable and immovable assets of the Mapochs Mine (Pty) Ltd (Mapochs). In July 2018, the Commission initially prohibited the merger due to foreclosure concerns. The Tribunal approved the merger subject to conditions agreed upon by the merger parties and intervenors. These conditions related to, among other things, employment, local beneficiation and securing vanadium-ore supply.
Regulatory: Updates & developments
- COMESA: The COMESA Competition Commission (CCC) has announced that it is looking to recruit a new Director to head the CCC. Applications are invited for the position from suitable candidates from the COMESA Member States by early November 2020.
- Gambia: The Executive Secretary of the Gambia Competition and Consumer Protection Commission has highlighted the need for regional competition law cooperation. Mr Amadou Ceesay, speaking during the United Nation's recent virtual conference on Competition and Consumer Protection, also said that the African Continental Free Trade Agreement presents an opportunity to establish a continent-wide competition policy framework.
- Nigeria: The FCCPC signed an updated tripartite Memorandum of Understanding (MoU) with the Nigerian Economic and Financial Crimes Commission and the American Federal Trade Commission. The purpose of the MoU is to strengthen cooperation and collaboration in addressing mutual cross-border consumer protection / fraud concerns.
- South Africa: On 6 October 2020, the Portfolio Committee on Trade and Industry met virtually for a briefing on the DTIC and the Department of Economic Development's 2019/20 annual reports. The Committee also received a briefing on the DTIC’s quarter one performance for the 2020/21 financial year.
- South Africa: The Commission's 14th Annual Competition Law, Economics and Policy conference will be taking place virtually on 3 and 4 November 2020. The theme for this year's conference is "Competition in a Crisis: Competition policy, regulation and enforcement in unprecedented times".
Retail: Updates & developments
- South Africa: The Tribunal conditionally approved K2020211444 (South Africa) (Pty) Ltd's (K2020) proposed acquisition of the business (assets and liabilities) of Barrie Cline Clothing (Pty) Ltd. K2020 is a wholly owned subsidiary of Truworths Ltd. The merger was approved subject to the condition that the acquiring firm shall not retrench any employees as a result of the merger, for a period of one year from the merger implementation date.
- South Africa: The Tribunal confirmed a consent agreement between Shoprite Checkers (Pty) Ltd (Shoprite) and the Commission. In terms of the consent agreement, Shoprite agrees to immediately stop enforcing the exclusivity provisions in its long-term lease agreements with its landlords against small, medium and micro enterprises, as well as speciality and limited line stores such as butcheries, bakeries, liquor stores and greengrocers. The Commission has also referred to the Tribunal for confirmation, its consent agreement with Pick n Pay (Pty) Ltd to eliminate exclusive leases in shopping malls in compliance with the recommendations of the Grocery Retail Market Inquiry.
Telecommunications, media and technology: Updates & developments
- South Africa: The Department of Communications & Digital Technologies published a draft policy framework whitepaper on audio and audiovisual content services (the Draft Paper). The Draft Paper recommends that the current cross-media ownership rules applicable to commercial sound and television broadcasting services be removed. According to the Draft Paper, any anticompetitive behaviour by broadcasters that might result from the relaxation of this rule should be dealt with by the Commission. A copy of the Draft Paper is available here
- South Africa: Telkom has approached the Tribunal to declare the spectrum arrangements between Vodacom and Rain as a merger. Telkom has alleged that the agreements between Vodacom and Rain, which grant Vodacom use and control over the deployment of Rain's spectrum, constitute a notifiable merger in terms of the Competition Act. Vodacom has since denied these allegations and has stated that the Commission found that the 2018 agreements do not constitute a merger.
Australia: Class exemption granted to small businesses
The Australian Competition and Consumer Commission (ACCC) has issued a class exemption which will allow small business, franchisees and fuel retailers to collectively negotiate with their suppliers and processors, franchisors or fuel wholesalers, without first having to seek ACCC approval. The ACCC is hopeful that the class exemption, due to commence in early 2021, will help a range of Australian small businesses and franchisees.
European Union: Updates & developments
- The European Commission (EC) has made commitments offered by Broadcom Inc. (Broadcom) legally binding under European Union antitrust rules. In June 2019, the EC initiated proceedings into alleged abuse of dominance by Broadcom and in October 2019, concluded that interim measures were necessary to prevent damage to competition. The EC ordered Broadcom to stop applying certain exclusivity or quasi-exclusivity and leveraging arrangements with six of its main customers.
- The EC conditionally approved Worldline S.A.'s proposed acquisition of Ingenico S.A. Both parties are active in the payment service sector. The merger parties have offered to divest certain businesses active in the provision of point-of-sale services to alleviate the EC's concerns the transaction would create or strengthen a dominant position in these markets.
India: Authority issues strict virtual hearing protocols
The Competition Commission of India (CCI) released a standard operating procedure (SOP) for virtual hearings. The SOP strictly prohibits parties and their authorised representatives from recording the proceedings. Furthermore, authorised representatives and parties that wish to join are required to sign an undertaking and strict instructions have been issued regarding the sharing of the link to hearings. The CCI has cautioned that individuals in breach of the protocol may face serious legal action.
United Kingdom: Updates & developments
- In a recent speech, the CEO of the Competition and Markets Authority (CMA), Andrea Coscelli, highlighted the need for a digital markets regime that is faster than traditional economic regulation and also called on competition authorities across the world to work with each other to tackle challenges in this market. Dr Coscelli has also said that the CMA may take direct action against certain tech firms, if the government does not set up an appropriate regulatory regime within a year.
- The CMA opened an investigation into suspected anti-competitive practices in the supply of drugs used to treat bipolar disorder. Essential Pharma is proposing to withdraw one of its drugs, Priadel, to United Kingdom patients. It is alleged that the withdrawal of Priadel would mean that thousands of patients need to switch to alternative, more expensive, lithium treatments.
United States of America: Updates & developments
- The United States (US) Congress released its report and recommendations following an investigation of competition in digital markets. The report is based on over 1.2 million documents and communications, testimony from 38 witnesses and thousands of pages of hearing records. The report found that, among other things, the digital economy has become highly concentrated and prone to monopolisation. The report recommends measures to restore competition in the digital economy, strengthen antitrust laws and revive antitrust enforcement.
- The US Justice Department and 11 states have filed an antitrust lawsuit against Google for allegedly using its market power to stifle its competitors. It is alleged that Google has foreclosed competition in the internet search market by paying to ensure that its search engine is used as a default browser. A status hearing took place on 30 October 2020.
Our recent work
Isuzu Motors / UD trucks
The Tribunal unconditionally approved Isuzu Motors Ltd's (Isuzu) proposed acquisition of UD Trucks Corporation (Japan) (UD Trucks).
Desmond Rudman, Andriza Liebenberg and Lebohang Makhubedu represented the merger parties.
In South Africa, Isuzu operates through its wholly owned subsidiary, Isuzu Motors South Africa (Pty) Ltd. Isuzu sells its vehicles and engines worldwide, and manufactures heavy, medium and light-duty commercial vehicles, buses, commercial vehicle engines and industrial-use diesel engines. UD Trucks is involved in the manufacturing and sale of commercial vehicles, buses, bus chassis and special-purpose vehicles.
The Tribunal found that the merger is unlikely to substantially lessen or prevent competition and does not raise any public interest concerns.
Andriza Liebenberg, Lebohang Makhubedu, Elisha Bhugwandeen and Kgomotso Mmutle published an article titled "Assessing cartel participation – context is key".