The African Continental Free Trade Area (AfCFTA) aims to promote economic development through trade liberalisation, facilitating regional integration and enhancing cooperation among member states. There are several pieces of enabling legislation (protocols) that are intended to give life to the endeavours of AfCFTA, one of which is the AfCFTA Competition Protocol.
A continental competition regulator is envisioned as part of this protocol, with competencies including considering mergers that have an effect at a continental level, where they meet certain financial thresholds. The exact scope and financial thresholds for the merger control regime are not finalised, although there was some movement when draft AfCFTA Competition Regulations were published for comment in 2024.
From a merger control perspective, an intention of the AfCFTA Competition Protocol is to avoid situations involving dual or even multiple notifications. Ideally, where a transaction is continental in dimension and meets the relevant financial thresholds, it should be presented only to the yet-to-be-established AfCFTA Competition Authority.
Notably, the draft AfCFTA Competition Regulations also appear to make provision for a referral mechanism, whereby, for example, a national competition authority may request that the AfCFTA Competition Authority refer a transaction notified to it to the national competition authority, either in whole or in part – leaving scope for national competition authorities to take jurisdiction in transactions notified to the AfCFTA Competition Authority.
The Comesa Competition Commission’s (CCC) revised regulations are intended to come into effect in late 2025 and will impact the current merger control regime in several ways. For example, currently the regime is non-suspensory, but parties are required to notify within 30 days of the “parties’ decision to merge”. One of the significant changes brought about by the revised regulations is to do away with the 30-day rule and to change the regime from being a non-suspensory regime to a suspensory regime.
The revised regulations also propose introducing a fast-track process for merger assessment, particularly for those mergers that do not raise significant competition or public interest concerns.
There has also been debate about the CCC's position as a one-stop shop. The revised regulations are expected to reaffirm the CCC’s exclusive jurisdiction over mergers that have a regional dimension (and meet the relevant financial thresholds) within the Comesa Common Market.
The EAC Competition Act has recently been revised, and supporting regulations and notices published. The expectation is that, in respect of merger control, the East African Community Competition Authority (EACCA) will function as a one-stop-shop for its member states, namely: Burundi, the Democratic Republic of Congo, Kenya, Rwanda, Somalia, South Sudan, Tanzania and Uganda.
The EACCA has, however, not yet started to receive merger notifications, and is in the process of signing a Memorandum of Understanding with the CCC to address potential dual notification obligations for those EAC member states that are also member states of Comesa.
Ecowas is a regional economic bloc, currently comprising 12 member states, namely Benin, Cabo Verde, Côte d’Ivoire, Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Nigeria, Senegal, Sierra Leone and Togo. Burkina Faso, Mali, and Niger withdrew their memberships from the economic bloc with effect from 29 January 2025.
The Ecowas Competition Regulatory Authority (Erca) published further legal instruments relating to competition law enforcement during 2024, including in relation to merger control (Ecowas Community Competition Rules (CCR)). The Ecowas merger control regime is mandatory, requiring parties to notify Erca of merger transactions where the parties operate in at least two Ecowas member states and meet specific financial thresholds. The merger regime is also suspensory.
Several Ecowas member states, including Nigeria, have operative national competition authorities and their own merger control regimes. Some Ecowas member states are also members of the West African Economic and Monetary Union (WAEMU), where competition law is regulated by a different regional regulator, the WAEMU Commission, whose merger control regime is voluntary and non-suspensory.
The CCR and supporting instruments confirm the primacy of Erca’s jurisdiction over conduct ‘likely to have an effect on trade within Ecowas’ and ‘acts, which directly affect regional trade and investment flows and/or conduct that may not be eliminated other than within the framework of regional cooperation’. In this context, Erca also aims to operate as a one-stop shop for cross-border transactions meeting the Ecowas thresholds for merger notification. Where a merger is notified to Erca, the clear intention is that separate notifications to national authorities will not be required.
The CCR also require the Erca to ‘cooperate with national and regional competition agencies in taking measures necessary to ensure implementation of the obligations arising from the CCR.
Erca has made significant strides in implementing its merger control regime since becoming fully operational in October 2024. Erca has received notifications for at least eight transactions and has granted unconditional approval in at least three cases to date, with an average review period of two to three months. Guidelines on Mergers and Acquisitions, 2024 have also been published, which function as a procedural framework and an analytical reference for assessing notifiable transactions under the CCR.
The presence of multiple regional competition regulators and an envisaged continental competition regulator raises questions around concurrency of jurisdiction, especially given that some countries have dual membership in certain regional blocs. Another issue to contend with is that certain countries have very active sector-specific regulators who enforce regulations that also include competition law principles.
For example, as explained above, Erca aims to operate as a one-stop-shop for merger notifications in the Ecowas region. Thus far, none of the national competition authorities have officially expressed alignment with the one-stop shop principle, and it appears that the Nigerian Federal Competition and Consumer Protection Commission may not yet be ready to relinquish its jurisdiction until various issues, including the issue of domestication of the CCR, is resolved.
Kenya is a member of the EAC and Comesa and has a strong national regulator, as well as various sector-specific regulators. It will be interesting to see how these layers of competition regulation are considered and if multiple filings can be avoided.
Like Kenya, Uganda is also a member of the EAC and Comesa. It recently enacted the Competition Act of 2024, although implementing regulations have not yet been published. A ‘Technical Committee’ within the Ministry of Trade is intended as the primary regulator of competition law matters in Uganda, but the country also has a number of sector-specific regulators responsible for competition regulation within a sector. It is not yet clear what the workaround may be in relation to competition issues falling under common jurisdiction.
As competition regulation across Africa continues to evolve, clarity will be required regarding competition law concurrency of jurisdiction. While competition regulators on the continent have been collaborating for some time, it will be important for the layers of continental, regional and national competition law to fit together in a way that streamlines the merger notification process. Part of this process will require the establishment of clear guidelines and cooperation mechanisms especially where ‘national interests’ may diverge.
Businesses can mitigate the challenges presented by multiple competition law regulators by assessing merger control obligations as early as possible in the deal process – paying particular attention to review timetables and the possibility of not only competition-related commitments but also public interest-related commitments.
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