Namibia: Namibian Competition Law: Revised Threshold After Withdrawal Of Initial Merger Regulations

The Namibian Competition Act ("the Namibian Act") was promulgated in 2003, and has been in force since March 2008. As under the South African competition law regime, the Namibian Act also contains merger regulation provisions. The Namibian Act stipulates that a merger occurs when one or more undertakings directly or indirectly acquire or establish direct or indirect control over the whole or part of the business of another undertaking.

The merger regulation provisions furthermore apply to every proposed merger, unless they fall within a class which the Minister of Trade and Industry ("the Minister"), with the concurrence of the Namibian Competition Commission ("the NCC"), has determined to be excluded from the merger provisions of the Namibian Act. For almost 5 years, the Minister failed to publish such notice, effectively resulting in all proposed mergers and acquisitions occurring in Namibia having to be notified to the NCC for approval or refusal before such merger could be implemented.

In a welcome development on the 7th of December 2012, monetary merger notification thresholds and threshold criteria for application of the abuse of dominance provisions were finally published in Namibia.¹ Peculiarly, these regulations determined that the merger control provisions of the Act would not be applicable where the merging parties' prescribed turnover and asset values exceeded both the thresholds. In effect, this meant that only small mergers, falling under the prescribed thresholds, had to be notified!

Quickly realising their mistake, these regulations were quietly withdrawn and simultaneously replaced by the Minister with the publication of new regulations on the 24th of December 2012. These regulations² amended the previously published threshold requirements for both the determination of a dominant position in the Namibian market³ and in respect of the class of mergers that are excluded from the duty to notify the NCC⁴.

The new thresholds entered into force on the date of publication and therefore apply to all mergers in Namibia after 24 December 2012. According to these regulations, the merger control provisions of the Namibian Act will not be applicable to a merger if: -

• the combined annual turnover in, into or from Namibia or the combined assets of the acquiring undertaking and target undertaking (and any combination thereof) is equal to or valued below N$20 million;
• and the annual turnover in, into or from Namibia, or the asset value of the target undertaking is equal to or valued below N$10 million.

Both of these thresholds must be crossed in order to trigger the duty of notification. Both the earlier and the current regulations, determined that the NCC reserves the right to demand a notification of every merger it considers necessary to deal with – even where it falls outside the compulsory notification thresholds. The merging parties will then have to submit a notification to the NCC within 30 days after a written demand by the NCC to do so. There is no time limit within which the NCC can ask for such notification (which may create much uncertainty for parties to small mergers).

As a result of the publication, withdrawal and amendment of the regulations, there was a period between the 7th to 24th of December 2012 during which no large mergers (i.e. those over the published thresholds), had to be compulsorily notified. Upon enquiry, the NCC indicated that they did not receive any merger notifications in the period between the publication of the two notices.

The NCC further indicated that, if they became aware of any large mergers which were implemented without notification during that period, they would request the parties to notify the transaction. The merging parties will then have 30 days to file a merger notification. Since there is no time limit attached to the NCC's ability to demand a notification, merging parties who implemented a transaction over the thresholds during the relevant time in December, may want to notify such merger voluntarily in order to ensure that they are not required, at a later stage, to unscramble the merged entity at the insistence of the NCC.

Although the publication, withdrawal and amendment of the regulations has led to some confusion and uncertainty, the publication of the final regulations are welcomed as it will result in a lesser regulatory burden (and decreased transaction costs as no filing fees will be applicable) on smaller acquisition activity in Namibia. It further brings the Namibian merger regime in line with its South African counterpart by only requiring notification of mergers above specified thresholds. These relatively low thresholds will relieve the merger review responsibilities of the NCC to some extent - yet, some say, not enough. It is therefore expected that the merger thresholds will be increased in due course, as has been the case under South African competition law from time to time.

Abuse of dominance

The adjustments which the current regulations made to the withdrawn regulations concerning the application of the abuse of dominance provisions of the Act, are rather marginal. Under the new regulation, the abuse of dominance provisions of the Act will not apply to a firm if: -

• its annual turnover in, into or from Namibia is equal to or valued below N$10 million;
• or its assets in Namibia are equal to or valued below N$10 million.

Apart from rephrasing the wording in the withdrawn regulations, the effect of the amendment is that firms with an annual turnover or asset value of exactly N$10 million will not be subject to the abuse of dominance provisions, whereas under the withdrawn regulation, such firm's conduct would have been subject to abuse of dominance scrutiny.

Namibian Corporate Leniency Programme

The NCC has made statements as far back as early as February 2011 that it was in the process of drafting a corporate leniency policy ("CLP") in order to motivate corporations engaged in cartel activities to approach the NCC to hand over information about cartels in order to receive leniency from prosecution in return. In the NCC's September/October 2012 newsletter it was stated that a CLP has been adopted at a NCC board meeting in March 2012 and directed that it be referred to the Minister "with the purpose of seeking consent on prescribing rules for the granting of leniency/immunity". At present, it appears that no such CLP has been agreed to by the Minister.

In South Africa, the validity of the CLP was placed in dispute, but it was confirmed as lawful by the South African courts at the end of last year, when the Supreme Court of Appeal ("SCA") declared that the CLP is a useful tool in the fight against anti-competitive behaviour (an appeal to the Constitutional Court was dismissed in November, signalling that they upheld the view of the SCA). Having regard to the successes the South African Competition Commission has had with its CLP, it is expected that a number of firms will avail of the leniency afforded by a CLP in Namibia and is awaiting its introduction with bated breath in order to hand in their applications.

Footnotes

1. Government Notices Numbers 288 and 289 of 7 December 2012.

2. Government Notices Numbers 306 and 307 of 24 December 2012.

3. In terms of Part II of Chapter 3 of the Namibian Act.

4. In terms of Chapter 4 section 44 of the Namibian Act.

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