Transcript George Lipimile, Director and CEO, COMESA

INTERFACE BETWEEN COMPETITION
LAW AND SECTOR REGULATION
(A BRIEF ON EXPERIENCE OF THE COMESA REGION )
George K. Lipimile
Director & Chief Executive Officer
COMESA Competition Commission.
[email protected]
BETWEEN COMPETITION LAW AND
SECTOR REGULATION
What is COMESA ?
 The Common Market for Eastern and Southern Africa
- promoting regional economic integration through
trade and investment.
With its 19 member states, population of 430 million
(2008) and an annual import bill of around US$ 152
billion (2008) and an export bill of over US$ 157 billion
(2008), COMESA forms a major market place for both
internal and external trading. Its area is impressive on
the map of the African Continent covering a
geographical area of 12 Million (sq km).
INTERFACE BETWEEN COMPETITION
LAW AND SECTOR REGULATION
COMESA Members States:
 Burundi, Comoros, Djibouti, DR Congo, Egypt*,
Ethiopia*, Eretria, Libya, Kenya*, Madagascar*,
Malawi*, Mauritius*, Rwanda, Swaziland*, Seychelles*,
Sudan*, Uganda, Zambia*, Zimbabwe*.
*Member States with Competition Laws.
• 8 COMESA Countries are part of SADC and 4 part of
EAC.
• A tripartite Taskforce has been set-up to harmonize the
programmes and the overall regional integration
process for the three Regional Economic Communities.
INTERFACE BETWEEN COMPETITION
LAW AND SECTOR REGULATION
• COMESA Competition Regulations and Rules :
 Having regard to Article 55 of the COMESA
Treaty.
 The Regulations were ratified by the Council of
Ministers on 17th December, 2004. They are now
law in all Member States.
 The first Commissioners were appointed in
December 2007, (Mr. Peter Njoronge elected as
first Chairman ).
 Government of the Republic of Malawi has
offered to host the Commission in Lilongwe.
INTERFACE BETWEEN COMPETITION
LAW AND SECTOR REGULATION
Application of the COMESA Regulations:
Apply to all economic activities whether
conducted by private or public persons …
having effect, within the common market;
Apply to conduct which have an appreciable
effect on trade between member states and
which restrict competition in the common
market.
INTERFACE BETWEEN COMPETITION
LAW AND SECTOR REGULATION
• Superiority of the COMESA Competition Regulations -:
 The Regulations shall enjoy primacy over national
competition law. The common market legal system shall
have precedence over national law and a Member State
may not unilaterally nullify a provision of the regulation
by its own subsequent domestic legislative measure.
 In accordance with Article 10(2) of the Treaty, the
Regulations shall be binding on all the Member states in
their entirety.
 it is envisaged that in future all the national competition
laws of the COMESA member states shall have their
national competition laws modelled on the COMESA
regional competition Regulations.
INTERFACE BETWEEN COMPETITION
LAW AND SECTOR REGULATION
Importance of Regulated Sectors - :
 Cover -: Banking, Energy, Telecommunication, Water
and Sanitation, Insurance, etc
 Traditionary they occupy dominant position (natural
monopolies) and regulated by government department
or incumbent operator hence, subject of liberasation
and privatization,
 Very sensitive economic sectors e.g. provider of
services, employment, contributor to GDP.
 Very important during EPAs Negotiations (Services).
 Too many dedicated seminars on the issue ( e.g SABanking Sector)
INTERFACE BETWEEN COMPETITION
LAW AND SECTOR REGULATION
Approach by Member States :
 Sector regulated Activities - :
 No exemptions, but follow similar approach -:
1. The economic activities of an enterprise in a sector where a
regulator exercises statutory powers is subject to competition.
2. The Competition Authority shall, for the purpose of coordinating
and harmonizing matters relating to competition in other sectors of
the economy, enter into a memorandum of understanding with any
regulator in that sector, in a the prescribed manner and form.
3’ The Competition Authority may, where it determines that a
regulated sector is unduly restrictive of competition, conduct a
market inquiry into the sector.
INTERFACE BETWEEN COMPETITION
LAW AND SECTOR REGULAT
Memorandum of Understanding.
 Negotiated between the Competition Authority
and each Sector Regulator,
 There are provided for in the statute hence, it has
legal effect,
 Aims to reduce regulatory uncertainty, forum
shopping, avoid duplication, and conflict,
 Attempts to clearly state the responsibilities and
functions of each institution involved (Division of
labour),concurrent jurisdiction,
INTERFACE BETWEEN COMPETITION
LAW AND SECTOR REGULATION
• Member states with or in the process of
having an MOU - :
 Malawi, Zambia, Zimbabwe, Kenya,
Swaziland, Mauritius, and Seychelles.
 OTHERS : South Africa, Namibia and
Botswana.
INTERFACE BETWEEN COMPETITION
LAW AND SECTOR REGULATION
Position at Regional Level - :
Article 3 of the Regulations -: Scope of Application “
These Regulations shall have primary jurisdiction over
an industry or a sector of an industry which is subject
to the jurisdiction of a separate regulatory entity
(whether domestic or regional ) if the latter regulates
conduct covered by Part 3 and 4 of these Regulations*.
This Article does not apply to conduct expressly
exempted by national legislation.
*Anti-competitive Business Practices and Conduct, and
Mergers and Acquisitions.
COMPETITION LAW AND POLICY
THANK YOU.
COMMENTS TO - :
George K Lipimile.
Director and Chief Executive Officer.
COMESA Competition Commission.
Lilongwe, Malawi.
[email protected]