​​​​In this Sep​tember issue:

Taking stock of Covid-19 competition law developments over September

The Competition Commission (Commission) has referred the first two Covid-19 related public procurement cases to the Competition Tribunal (Tribunal) for prosecution. The cases emanate from complaints lodged by the South African Police Services (SAPS) in relation to the procurement of Personal Protective Equipment (PPE). In the first matter, the Commission is concerned that a funding arrangement between BlueCollar Occupational Health (Pty) Ltd and Ateltico Investments (Pty) Ltd contributed to the excessive mark-up on bulk hand sanitisers. In the second matter, Commission has raised concerns about the 87% gross mark-up charged on 500 000 surgical masks that the SAPS procured from Tsutsumani Business Enterprises CC (Tsutsumani). The Commission has announced that it is following up on the Report of the Auditor General of South Africa (AG) on overcharging​ by suppliers of PPE to the public sector and is engaging with the AG’s office, National Treasury and the Special Investigations Unit to sift cases for prioritisation.

The Commission published a report titled "Essential Food Pricing Monitoring". As part of its enforcement actions against price gouging as a result of Covid-19, the Commission also began to monitor essential food prices more broadly. The report examines pricing outcomes across fresh produce markets, wholesale-retail margins of key products, basic food commodities (such as maize, wheat and rice) and Johannesburg fresh produce market prices.

Since our August 2020 update, the Tribunal confirmed one Covid-19 related settlement agreement between Sentra Kem Pharmacy CC (Sentra Kem) and the Commission. The supplier of pharmaceutical products has agreed to pay ZAR ​15 785.03 to the Solidarity Fund after it was accused of charging excessive prices for face masks. In addition to the donation, Sentra Kem also agreed to reduce its gross profit margin, desist from the excessive pricing conduct and implement a competition law compliance programme.​​

Africa news

Agribusiness, food & beverage: Updates & developments

• South Africa - The Tribunal dismissed a case of alleged cartel conduct against Irvin & Johnson (I&J) due to lack of evidence. Following an investigation in 2017, the Commission alleged that I&J and Karan Beef (Pty) Ltd divided markets for the supply of processed beef products. The Tribunal concluded that the Commission did not present evidence that the agreements impacted adversely on competition in any segment of the market and that the conduct of the two respondents did not accord with that usually associated with cartelists.
• South Africa - The Tribunal conditionally approved a de-merger, in which AFGRI Operations Ltd and Senwes Ltd (Senwes) intend to terminate a joint venture formed in 2013, named Hinterland Holdings (Pty) Ltd. Post-merger, Senwes will have sole control of the Hinterland business. The Tribunal approved the proposed transaction subject to the condition that no retrenchments take place for a period of two years.
• South Africa - The Commission conditionally approved Roos Foods (Pty) Ltd's acquisition of the business of ten KFC franchised restaurants owned and carried on by van Eeden Kitskos (Pty) Ltd. The merger was approved subject to certain employment-related conditions in order to safeguard against any potential retrenchments that may arise as a result of the proposed transaction.

Healthcare: Updates & developments

• Mauritius - The Executive Director of the Mauritian Competition Commission (MCC) published a Pharmaceutical Market Study Report for Consultation (the Report). Interested parties have been invited to comment on the Report by 12 October 2020. The Report sets out a review of the legislative framework governing the pharmaceutical sector, an analysis of the market structure and concentration along the pharmaceutical supply chain and an assessment of potential competition issues. The Report also includes recommendations to address the issues identified.
• Zambia - The Competition and Consumer Protection Commission (CCPC) has advised schools to desist from imposing the purchase of identical face masks on pupils. The CCPC warned that this practice is in contravention of the Competition and Consumer Protection Act No. 24 of 2010 and that any school found guilty will be liable to pay a fine.
• Zimbabwe - The Competition and Tariff Commission (CTC) warned stakeholders that the practice of imposing a supplier of face masks and sanitisers on schools, pupils, parents and guardians, is an anticompetitive practice prohibited in terms of the Zimbabwean Competition Act [Chapter 14:28]. The CTC requested that stakeholders approach it with information on any forced sales during the Covid-19 pandemic period.

Regulatory: Updates & developments

• Botswana - The Competition and Consumer Authority (CCA) signed a Memorandum of Understanding (MOU) with the Botswana Bureau of Standards aimed at collaborating towards detecting anti-competitive practices. Among other things, the MOU is intended to enable the two organisations to assist each other with data collection and analysis, inspection of business and products as well as the examination and testing of goods.
• Kenya - During the Competition Authority of Kenya's (CAK) recent series of webinars, the Manager of the CAK's Buyer Power Department, Ms Priscilla Njako, indicated that if the CAK establishes that a sector is experiencing incidents of abuse of buyer power, it may enhance monitoring to ensure compliance. Ms Njako said that the CAK will deploy administrative and other measures to prevent unfair and injurious practices that progressively drive small and medium enterprises out of the market due to imbalanced relationships with larger firms.
• Malawi - President Dr Lazarus Chakwera appointed a new Board of Commissioners of the Competition and Fair Trading Commission (CFTC), effective from 23 September 2020. The members include two persons representing business interests, a lawyer, an economist, an accountant and two persons representing consumer interests. The Board also includes the Secretary to the Treasury, the Secretary for Commerce and Industry, and the General Manager of the Malawi Bureau of Standards as ex officio members.
• Namibia - Namibia's Supreme Court dismissed an appeal by the Namibian Competition Commission (NaCC) against a decision of the Windhoek High Court setting aside an order granted to the NaCC to conduct a dawn raid on Puma Energy Namibia (Pty) Ltd. The Supreme Court agreed with the High Court and held that the power to search and seize can only be applied for by an inspector appointed in terms of the Namibian Competition Act No. 2 of 2003.
• Namibia - The NaCC has granted an extension until 30 October 2020 for comments on the Draft Competition Bill. A summary of the proposed amendments is available here.

Retail: Updates & developments

• COMESA - The COMESA Competition Commission (CCC) has found that an agreement between Shoprite Supermarkets (Shoprite) and GS1 Kenya did not amount to an anti-competitive practice. The ruling follows complaints raised by suppliers and other firms against Shoprite's practice of requiring that suppliers obtain bar codes exclusively from GS1 Kenya.
• South Africa - The Tribunal conditionally approved Retailability (Pty) Ltd's (Retailability) acquisition of parts of the Edgars business conducted by Edcon Ltd (Edcon) in South Africa as a going concern, consisting of certain assets and liabilities. The Tribunal approved the transaction subject to the condition that the merger parties shall not retrench any employees for three years from the merger implementation date and that Retailability will give preference to any former Edcon employees should vacancies arise within three years of the merger implementation date.
• South Africa - The Tribunal conditionally approved Foschini Retail Group (Pty) Ltd's (Foschini) acquisition of Edcon’s Jet Division. The Tribunal approved the transaction subject to the condition that Foschini will not retrench any employees as a result of the merger for two years from the merger’s implementation date and that Foschini will give preference to eligible Edcon employees should vacancies arise in the Jet Business for a period of three years from the merger implementation date.
• South Africa - The Commission conditionally approved Nimble Credit Fund 1 (Pty) Ltd's (Nimble Credit) acquisition of parts of Edcon Ltd’s (in business rescue) loan book and associated inhouse administration services, including debt collection services, which consist of certain assets and certain yet to be identified employees (the Target Business). The merger was approved subject to the condition that there will be no job losses due to the merger for a period of at least two years from the date of approval of the transaction. The merger parties also committed to make offers of employment to at least 150 employees of Edcon’s financial services division that were dedicated to the Target Business.

Telecommunications, media and technology: Updates & developments

• ​South Africa - The Commission has extended its call for public comments on its paper titled "Competition in the Digital Economy" to 30 October 2020. Our e-alert summarising the key competition and regulatory issues identified and the strategic actions proposed by the Commission is available here.
• South Africa - The Tribunal conditionally approved Hensoldt Optronics (Pty) Ltd's (HOSA) acquisition of the air traffic management (ATM) business and the defence and security business of Tellumat (Pty) Ltd (Tellumat). The Hensoldt Group manufactures and sells sensor systems, and Tellumat operates its ATM division in the aerospace market (mainly contracting with the South African National Defence Force and airports). Since nine employees are likely to be retrenched as a result of the proposed transaction, the Commission approved the merger subject to the condition that the Hensoldt Group will give first preference to the affected employees should suitable positions become available over the course of the 12 months following the merger implementation date.

Transport: Updates & developments

• Botswana - The Competition and Consumer Tribunal (CCT) dismissed an application by Gaborone Container Terminal (GABCON) to file supplementary affidavits in the abuse of dominance complaint lodged against it by the Competition and Consumer Authority. GABCON challenged the CCT's jurisdiction and argued that since it was a statutory monopoly, it did not fall within the ambit of the Botswana Competition Act 4 of 2018 (the BCA). The CCT held that GABCON is not a statutory monopoly as it is not created by statute and is therefore not protected by the BCA.
• South Africa - The Tribunal confirmed a consent order between the Commission, MAHLE GmbH and MAHLE Behr GmbH & Co. KG (MAHLE Behr). The Commission found that MAHLE Behr and one of its competitors engaged in cartel conduct when responding to tenders issued by original equipment manufacturers (OEMs), in respect of the manufacture and supply of certain automotive components to certain OEMs outside South Africa. MAHLE Behr has agreed to pay an administrative penalty of ZAR 1 622 106.00.
• South Africa - The Tribunal confirmed a consent agreement between the Commission and Panasonic Corporation (Panasonic). The Commission alleged that Panasonic and Denso Corporation engaged in price-fixing, market division and collusive tendering in respect of Requests for Quotations in the market for the manufacture and supply of automotive components to OEMs. Although Panasonic did not admit guilt, it has agreed to pay an administrative penalty of ZAR 537 980.00.

International News

Australia: Updates & developments

• The Australian Competition and Consumer Commission (ACCC) received an award from the International Competition Network and World Bank Group for work done to improve competition in the Australian dairy industry. The work done included an inquiry into competition in the sector and the recommendation of a mandatory code.
• The ACCC released a report on Airline Competition in Australia, which explores the significant impact of Covid-19 on the sector. The report also outlines the approach that the ACCC will take to protect competition in the sector.
• The ACCC granted an authorisation to the Australian Energy Market Operator (AEMO) and participants in gas and electricity markets to cooperate on measures to secure Australia’s energy supplies during the Covid-19 pandemic. The authorisation allows the AEMO and energy industry participants to share essential personnel, essential inputs and information about the operation of their facilities.

European Union: EC publishes findings of the evaluation of the Vertical Block Exemption Regulation

The European Commission (EC) published a "Commission Staff Working Document" summarising the findings of the evaluation of the Vertical Block Exemption Regulation, together with the Vertical Guidelines. Based on the findings, the EC will launch an impact assessment to consider the policy options for a revision of the rules in order to address the issues identified during the evaluation.

India: Competition authority dismisses abuse of dominance case against Amazon

The Competition Commission of India (CCI) dismissed a case of alleged abuse of dominance brought by Lifestyle Equities C.V. and Lifestyle Licensing B.V (collectively, Lifestyle) against Amazon Seller Services Private Ltd, Amazon Export Sales LLC and Cloudtail India Private Ltd (the technology firms). Lifestyle alleged that there are instances of unfair practices by the technology firms which have had an exclusionary effect on Lifestyle's overall online business operations in India. The CCI noted that there are multiple players operating in the relevant market and it seems unlikely that the alleged conduct would have the alleged appreciable adverse effect on competition.

United Kingdom: Updates & developments

• The Competition and Markets Authority (CMA) updated its guide on competition law risk. The guide is issued to assist managers, directors and their legal advisers to comply with competition laws. The guide features up-to-date case studies and examples of best practices.
• The CMA has signed a Mutual Assistance and Cooperation Framework for Competition Authorities (MMAC). The CMA entered into the MMAC with four of its international counterpart competition authorities (namely Australia, Canada, New Zealand and the United States) to improve co-operation on investigations.

United States of America: Justice Department takes final steps in Google antitrust case

It has been reported that the Justice Department is taking final steps before filing its landmark case against Google by briefing officials from the state attorney's general offices. The purpose of the briefing session is to outline a potential lawsuit against Google which will focus on the company’s search business and whether the company used its dominant search position to block rivals and harm consumers.

Our Recent Work

International Flavors & Fragrances / Nutrition & Biosciences

The Commission unconditionally approved the acquisition by International Flavors & Fragrances Inc. (IFF) of DuPont de Nemours’ (Du Pont) Nutrition & Biosciences business (N&B) from Du Pont.

Robert Wilson and Clare-Alice Vertue represented IFF.

IFF is a public company which develops, creates, and sells flavours and fragrances worldwide. The N&B Business is active worldwide in the development, production, and marketing of food science, taste and texture applications, and biotechnology products.

The Commission found that the merger is unlikely to substantially lessen or prevent competition and does not raise any public interest concerns.

JSE / Link Market Services

The Tribunal conditionally approved the Johannesburg Stock Exchange Ltd's (JSE) acquisition of Link Market Services South Africa (LMS SA).

Robert Wilson, Andriza Liebenberg, Nadia Dhorat and Michael Benefeld represented the JSE in the Tribunal proceedings.

The Commission prohibited the merger in November 2019. However, the JSE and LMS SA subsequently approached the Tribunal for a reconsideration of the Commission’s decision. Computershare South Africa, an intervenor in the proceedings, joined the Commission in opposing the merger

The Tribunal approved the merger subject to conditions relating to, among other things, the JSE's interactions with issuers and sponsors, information sharing and the JSE's postbox services.

Insights

Daryl Dingley, Kgomotso Mmutle and Elisha Bhugwandeen published an article titled "Tackling Buyer Power in South Africa".