Most Read Contributor in South Africa, September 2016
The publication of Government Gazette No. 288 and 289 of 2012 on
Friday 7 December 2012 has given rise to two new developments in
Namibian competition law.
Firstly, despite having a functioning competition law regime for
almost a decade, the Namibian competition authorities published
monetary merger notification thresholds for the
first time on Friday, 7 December 2012.
Prior to the publication of these thresholds, parties seeking to
implement any transaction meeting the definition of a
"merger" (as contemplated in section 42 of the Namibian
Competition Act No 2 of 2003) were obliged to notify the
transaction to the Namibian Competition Commission and procure its
approval for implementation.
Going forward, the publication of these monetary thresholds will
limit the class of mergers requiring notification to and approval
from the authorities prior to implementation. Government
Gazette No. 288 of 2012 stipulates that the merger provisions of
the Namibian Competition Act will not find
The combined annual turnover in, into or from Namibia or the
combined assets in Namibia of the acquiring and the target
undertakings (or any combination thereof) are valued below N$ 20
The target undertaking's annual turnover in, into or from
Namibia or the asset value of the target undertaking in Namibia is
less than N$ 10 million.
Despite the foregoing, where the Namibian Competition Commission
considers it "necessary" to deal with a merger (albeit
that the merger falls below the thresholds stipulated above) it may
call upon the merging parties to submit a compulsory merger
notification to it within 30 days of written demand to do so.
Interestingly, it would appear that the Namibian Competition
Commission is free to call for such a merger notification in
perpetuity and is not restricted by any particular time period
within which to do so as the South African competition authorities
Secondly, Government Gazette No. 289 of 2012 also sets out
criteria for determining a dominant position in
the market as contemplated in section 25 of the Namibian
Competition Act. In this regard, the authorities have
indicated that the abuse of dominance provisions in the Namibian
Competition Act will only find application in respect of an
undertaking whose annual turnover in, into or from Namibia
or whose assets in Namibia are valued at or above N$ 10
million. Any firm whose annual turnover or asset value in Namibia
falls below this threshold cannot be found to have abused a
position of dominance in a relevant market.
Together with the aforementioned thresholds / criteria, the
authorities have also made guidelines available to assist
undertakings in the calculation of the asset / turnover figures
Given that these thresholds are relatively low it remains to be
seen whether they in reality serve to exclude a significant number
of merger transactions and abuse of dominance complaints from the
jurisdiction of the Namibian competition authorities. From
our experience in South Africa (in which the first monetary merger
thresholds published were amended several times), it seems likely
that these thresholds may be increased in time to effectively limit
the class of transactions falling within the jurisdiction of the
Namibian competition authorities as notifiable mergers.
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guide to the subject matter. Specialist advice should be sought
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