Setting the New Benchmark in Africa

Africa's approach to enforcing competition law is experiencing a transformative shift, highlighted by the Federal Competition and Consumer Protection Commission (FCCPC) of Nigeria's landmark USD 110 million fine on British American Tobacco Nigeria Limited and affiliated companies (BAT). This penalty is not just a substantial financial imposition; it also indicates that African competition authorities are elevating their enforcement actions to align with international norms of competition law and are placing a heightened emphasis on corporate accountability.

Expanding the Horizon of Enforcement - Playing by the Rules

Such momentum in competition law enforcement is not isolated to Nigeria. Just recently, the Confederation of African Football (CAF) and beIN Media Group faced USD 300,000 fines each from the Common Market for Eastern and Southern Africa (COMESA) Competition Commission. These fines, issued on January 25, 2024 were for anti-competitive practices related to the awarding of television rights for CAF-organized tournaments. It is noteworthy that this is the first time the Commission has levied such a fine, coinciding with the Africa Cup of Nations, CAF's flagship event. This marks a proactive stance by COMESA in monitoring and penalising actions that compromise fair competition.

Historical Precedents and Global Context

Prior to the BAT case, the most substantial competition law enforcement fine in Africa stemmed from the Maize Cartel Investigation. Over a period stretching from 2010 to 2020, the South African Competition Tribunal issued fines that collectively reached R648,603,135.45 against 14 companies for engaging in price-fixing activities. These fines equate to an estimated USD 45 million. The case was marked by a systematic collaboration among companies, sometimes coordinated under the guise of an industry trade organisation, to manipulate the prices and trading conditions of maize products. Such actions were in direct contravention of the provisions set out in the South African Competition Act.

The significant USD 110 million fine levied against BAT by Nigerian authorities for abuse of dominance and consumer rights violations signifies a new direction in competition law enforcement across Africa. This action demonstrates a rising commitment by African competition authorities to hold individual corporations responsible for engaging in anti-competitive behavior.

This trend reflects a broader global movement towards individual accountability in corporate conduct. The early 2000s brought to light a significant legal scandal involving LG, Sharp, and Chunghwa Picture Tubes, which were implicated in a price-fixing conspiracy that contravened antitrust laws. Beyond the hefty corporate fines (in billions of dollars), this scandal gained prominence for the imprisonment of individual executives, reinforcing the concept of personal responsibility and the consequences of corporate malfeasance.

Investigations spanning multiple continents revealed deliberate actions by these companies to undermine fair market competition. This scandal was crucial in driving a global reassessment of business practices, highlighting the essential nature of adherence to competition laws and the upholding of ethical standards in business operations.

Internationally, the European Union's imposition of fines on Google (€4.34 billion) and Intel (€1.06 billion) for anti-competitive practices signifies a zero-tolerance to anticompetitive maintain competitive fairness. Likewise, the United States has consistently enforced its antitrust laws, as evidenced by cases against companies like Microsoft and the scrutiny over the AT&T-Time Warner merger.

A Broader Movement Toward Compliance and Enforcement

The FCCPC's recent actions in Nigeria, under the auspices of the Federal Competition and Consumer Protection Act (FCCPA), signify a broader movement within African competition law enforcement. With the FCCPC initiating investigations into anti-competitive practices beyond just mergers—employing tactics such as dawn raids—there is a clear alignment with similar proactive regulatory approaches in Zambia and Namibia. Additionally, the adoption of Leniency Programmes in Mauritius, Botswana, Zambia, and Kenya reflects a continental shift toward more rigorous enforcement.

This proactive stance heralds a new era of compliance and enforcement, where African regulatory bodies are actively pursuing cartels and investigating abuse of dominance. These areas were traditionally the focus of longer-established bodies such as the South African Competition Commission, which has imposed over R4 billion in fines across a spectrum of industries. The evolving landscape indicates an increased capacity and resolve among African competition authorities to uphold the law and ensure fair market practices. This shift is not merely about imposing fines but about fostering a culture of compliance and ethical business practice, which is crucial for sustainable business strategy.

Legal Framework and Compliance Imperatives

Competition law ensures fair competition among businesses while safeguarding consumer welfare. In Nigeria, this legal framework is upheld by the Federal Competition and Consumer Protection Act (FCCPA), which mirrors global standards by tackling abuse of market dominance, restrictive agreements, and scrutinizing mergers and acquisitions to prevent excessive market concentration. A thorough grasp of these areas is indispensable for businesses within the Nigerian marketplace.

Competition policy operates on a three-pillared framework addressing key market concerns: concerted actions, unilateral conduct, and prospective combinations or integrations through mergers or acquisitions. Among these, the most severe violations typically involve coordination or restrictive agreements. These agreements may include practices such as price-fixing, market division, production limitation, or collusive tendering, all of which significantly disrupt market fairness and competition.

Dominance in the market, per se, is not deemed wrongful. However, when an entity holds a dominant position—defined as having the ability to act independently of suppliers, customers, and competitors, particularly if it controls 40% or more of the market share under conditions like significant entry barriers, substantial financial power, or absence of countervailing buyer power—it must not abuse this advantage. Abuse of dominance can take various forms, including but not limited to, predatory pricing, setting excessive prices, imposing unfair contractual terms, or employing exclusionary strategies designed to impede competitive forces.

The third pillar focuses on the scrutiny of mergers and acquisitions to avert undue market concentration. The Federal Competition and Consumer Protection Commission (FCCPC) plays a crucial role here, evaluating mergers to ensure they do not confer or amplify market power in a way that could detrimentally impact competition. Mergers leading to excessive market concentration pose risks such as stifling competition, curbing innovation, elevating prices, and limiting choices for consumers.

The FCCPA outlines fines and administrative penalties tied to a percentage of annual turnover or revenue and introduces the notion of criminal liability for directors in specific scenarios. This highlights the importance of personal responsibility among corporate leaders to cultivate a business environment that is both competitive and compliant. The 2018 Code of Corporate Governance further mandates continuous risk assessment by boards, thereby elevating competition compliance to a critical concern. This perspective is particularly relevant in sectors or markets vulnerable to certain risks or dominated by companies with a significant market share. Boards must now prioritize proactively identifying and mitigating potential competition law risks.

The Strategic Necessity of Compliance

Adhering to competition law is more than just fulfilling a legal requirement; it is a strategic necessity vital for a company's positioning in the market and its enduring success. Companies with significant market power or those engaged in substantial market-facing activities must integrate competition law compliance into their risk management strategies. Developing robust internal compliance programs is essential to avoid legal issues, uphold ethical standards, and potentially mitigate the impact of regulatory inquiries.

Supporting Businesses Through Legal Complexities

At SimmonsCooper Partners, we understand the challenges businesses face with the evolving competition law landscape. We offer the "SCP Comp Bootcamp," a complimentary advisory service, to provide businesses with the necessary knowledge and tools for effective compliance with competition laws. Our commitment is to deepen the understanding of these laws, promote a culture of compliance, and uphold ethical business practices. In a time when corporate accountability is more critical than ever, our guidance is essential for leaders aiming to manage risks and steer through the complexities of competition law compliance.

For further details on the SCP Comp Bootcamp or to inquire about competition compliance, please contact: Ikem Isiekwena; Oluwadara Omoyele or Ema Ogbe.

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