MAURITIUS Law and Practice Contributed by: Sameer K. Tegally, Sonia Xavier and Ashvan Luckraz, Venture Law
guidance usually contains the details laid down in the Competition Commission Rules of Procedure 2009. 6.2 Merger Control Procedure Applications for guidance in relation to merger noti - fications are made by completing and filing the form known as “Form 1” with the CCM. Form 1 requires detailed information on the merger situation to be sub - mitted to the CCM. This includes: • the full name and address of the joint representa - tive of the merger parties (where appointed) in a joint application or the full name and address of all merger parties where a joint representative is not appointed; • the nature of the merger, such as whether it is an anticipated merger, an acquisition of sole or joint control, a full-function joint venture, or a contract or other means of conferring direct or indirect control; • the value of the transaction – ie, the purchase price or the value of all the assets involved, depending on the circumstances; and • for each of the merger parties, the area of activity and turnover, worldwide and in Mauritius, for the financial year, and the parts of the business subject to the merger. Prior to the lodging of the merger notification with the CCM, parties are encouraged to carry out pre- notification consultations with the CCM, as the latter may refuse to accept an application if it is incomplete, not accompanied by the relevant supporting docu - ments, not substantially in the prescribed form or not in compliance with the Act. Pre-notification consulta - tions with the CCM are usually carried out promptly, subject to the availability of the parties, and do not affect the timeframe for the assessment of the merger notification once it is submitted to the CCM. Upon receipt of the complete merger notification, the CCM will conduct a preliminary assessment to determine whether there are reasonable grounds to believe that the merger situation results in, or is likely to result in, a substantial lessening of competition. The preliminary assessment may be completed within 30 working days, depending on the nature and com - plexity of the merger situation. In the affirmative, par - ties are informed of these concerns within 30 working
days, and an in-depth assessment is triggered. Other - wise, if the preliminary assessment demonstrates no substantial lessening of competition, the parties are informed accordingly, and the matter is closed. On the other hand, in-depth assessments are usually carried out by the CCM over a period of six months. Where the commissioners of the CCM determine, after review, that the creation of a merger situation has led, or is likely to lead, to a substantial lessening of com - petition, they may give the enterprise such directions as they consider necessary, reasonable and practica - ble to (i) remedy, mitigate or prevent the substantial lessening of competition; and (ii) remedy, mitigate or prevent any adverse effects that have resulted from, or are likely to result from, the substantial lessening of competition. 6.3 Cartels Under the Act, “Agreement” means “any form of agree - ment, whether or not legally enforceable, between enterprises which is implemented or intended to be implemented in Mauritius or in a part of Mauritius, and includes an oral agreement, a decision by an association of enterprises, and any concerted prac - tice”. “Concerted practice” is also defined in the Act as a “practice involving contacts or communications between competitors falling short of an actual agree - ment, but which nonetheless restricts competition between them”. The Act regulates various forms of agreements and practices, and prohibits collusive agreements and practices that have the object or effect of prevent - ing, restricting or distorting competition. This includes restrictive practices such as horizontal agreements, non-collusive horizontal agreements, bid rigging, ver - tical agreements involving resale price maintenance and other vertical agreements. It is not open to enterprises engaged in these prac - tices to argue that they have no adverse effects, nor do the “off-setting benefits” provisions of the Act apply to such agreements to allow any argument that they have beneficial effects resulting in specific gains, which may outweigh the adverse effects caused by the said agreement or practice. Unlike the other breaches under the Act, collusive agreements and practices are
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