The Namibian Competition Commission (NaCC) which has determined 52 mergers and acquisitions in 2023, says it is pushing for enhanced investigative powers through the introduction of summoning authority in its arsenal.
The Director of Enforcement and Cartels Division at NaCC, Paulus Hangula, told The Brief that the existing legislation grants summoning power only for investigations into anti-competitive practices, leaving a significant gap when it comes to crucial information needed for mergers and acquisitions assessments.
He highlighted that this is a critical issue faced by the NaCC in its investigative processes, particularly in the assessment of majors and acquisitions under Chapter Four.
“When we receive a merger, we are not empowered to summon. So, we are required to go into the market voluntarily, and if the market participant does not provide the necessary information, there’s nothing we can do. There’s no authority,” he said.
This gap in authority hampers the NaCC’s ability to compel parties to submit essential information for a thorough assessment.
Hangula noted that the proposed amendment aims to rectify this loophole, granting the NaCC the authority to summon parties involved in mergers and acquisitions assessments.
Regarding the progress of this initiative, Hangula said the proposed amendment is with the Ministry.
Adding that the necessary consultations have taken place, incorporating input from various stakeholders, including international counterparts.
“The amendment is now awaiting discussion and approval by the Cabinet Committee. The process has been ongoing since 2015. Extensive consultations, both domestically and internationally, have contributed to the refinement of the draft amendment. Although the exact timeline remains uncertain, the NaCC is optimistic about the successful endorsement of the amendment,” he said.
Hangula explained that integrating the tribunal within the structure of the competition authority could significantly expedite the process.
Drawing parallels with other jurisdictions, he noted that a dedicated tribunal within the authority’s structure streamlines proceedings and ensures expertise in competition law.
While cautious about making definitive statements before approval, Hangula expressed optimism that such a structural change could lead to faster case resolutions.
“This might bring the need for experienced individuals in law, economics, and competition law to preside over the tribunal, ensuring a nuanced understanding of the complex matters at hand,” he said.
Hangula noted that the real estate and the wholesale and retail trade sectors accounted for the majority of these mergers.
In addition, 10 cases of contravention of merger regulations are under investigation and the mergers division is monitoring a further 37 cases.
Meanwhile, in respect to anti-competitive conduct, the Commission during 2023, handled 19 investigations, of which six have been completed.
“These investigations are across various industries such as banking, telecommunications, retail, pharmaceutical, fishing, pension funds, and broadcasting, just to mention but a few,” Hangula said.
NaCC Acting Director of Mergers and Acquisitions, Johannes Shangadi noted that the Commission has investigated significant mergers in the LPG, fuel and cement industries this year with the Commission having approved with conditions the mergers involving Vivo and Gas It, Vitol and Engen and RWCO and Swenk (Ohorongo Cement).
He said apart from investigating matters notified to the Commission, NaCC as well investigates and monitors cases that may have been implemented without notification, and the Commission is investigating 10 such matters.
“Upon conclusion of such investigation, the Commission may apply to the Court to prevent the further implementation of the merger, dissolve the merger, or ask for a penalty against the parties. Input of the public and players in the market is very important here,” he said.
