As a member of the Common Market for Eastern and Southern African ("COMESA"), Zambian competition law recognizes the COMESA Competition legal framework. The application of this competition regime extends to all economic activities within Zambia or having an effect within Zambia. This includes transactions involving acquisitions of real estate as outlined in our Mondaq Real Estate Comparative Guide (please click here to access our Mondaq Real Estate Comparative Guide) and those involving acquisitions of mining rights and non-mining rights as outlined in our Mondaq Mining Comperative Guide (please click here to access our Mondaq Mining Comparative Guide), provided the requisite test is met.
This legal alert highlights the interim measures on merger review imposed by the COMESA Competition Commission ("CCC") in light of the COVID-19 Pandemic.
The CCC is an international organization established by COMESA Competition Regulations, 2004 (the "Regulations") with the mandate to regulate trade within Member States and promote and encourage competition in the Common Market.
INTERIM MEASURES IMPOSED
- Receipt of merger notifications
Parties to mergers are being encouraged to submit notifications and filings electronically by email to the CCC's prescribed email address. Electronic submissions should include certified copies of filings.
Guideline 5.4 of the COMESA Merger Assessment Guidelines, 2014 (the "Guidelines") provides that hard copies should be submitted to the CCC within 7 days of the electronic submission. The CCC has guided that hardcopies can now be submitted at a later practical date and parties will not be expected to submit hard copies within 7 days of the electronic submission.
- Notification of a merger following a decision to merge by parties
The CCC has directed that it will consider the initial engagement with the parties as the beginning of the notification process and this process will be considered complete once all the information is submitted. As long as the parties have engaged the CCC on the notification process, they shall not be penalised for failure to submit complete information within 30 days of the parties' decision to merge. This is in contrast to Article 24 (1) of the Regulations which requires parties to notify the CCC in writing of a decision to merge within 30 days of the decision being made. The CCC understands that due to restrictions of movements and lockdowns in most countries as a result of the COVID-19 Pandemic, some parties may not be able to gather all the necessary information to enable them complete the notification within the 30 days period.
- Investigation Period
The CCC has noted that it may not be able to complete its assessment of mergers that have been notified and are yet to be notified in accordance with the 120 days stipulated under Article 25 (1) of the Regulations, as engagements with relevant stakeholders have been made difficult by the lockdowns and travel bans in most countries.
The CCC has stated that the 120 days investigation period may be extended in some cases, pursuant to Article 25 (2) of the Regulations, as it may not be practicable to complete the assessment within 120 days under the circumstances brought on by the COVID-19 Pandemic.
- Consultations and meetings
The CCC has suspended onsite investigations and face-to-face meetings with regard to merger investigations.
Consultations and meetings shall continue to be held through teleconferencing facilities until the situation normalises.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.