NAMIBIA Law and Practice Contributed by: Nadine van Schalkwyk, Ralph Strauss, Bonita R de Silva, Ivo dos Santos, Chrissie Turck, Jané Louw, Nicole Freygang and Natasha Nekuta, Dr. Weder, Kruger & Haikali Inc.
The Competition Commission, upon receipt of the notification, must make a determination thereon within 30 days. The Competition Commission may, within the 30-day period, request additional information, which results in the extension of the period for determination with another 30 days from the receipt of the infor - mation. In addition to the foregoing, the Competition Commission may extend the period with a further period not exceeding 60 days if the complexity of the matter justifies such an extension. As part of the review process the Competition Com - mission may call for a stakeholder conference at which the stakeholders can make submissions. Where the Competition Commission believes that a proposed merger may have negative competition or public interest implications, it is not uncommon for the Competition Commission to offer the relevant under - taking an opportunity to engage with the Competition Commission to canvas the Competition Commission’s concerns and/or propose solutions thereto. The Competition Commission will issue a notice set - ting forth its determination and, if applicable, any conditions that it imposes upon an approval of the intended merger. Undertakings that are dissatisfied with the determina - tion of the Competition Commission may, within 30 days of the decision, apply to the relevant minister for a review of the determination. The minister has the power to confirm, amend or overturn the determina - tion by the Competition Commission. The ministerial review process entails a notice to the public of the receipt of the appeal and invites the public to make submissions thereon. The minister must complete the review and publish a determination within four months of receipt of the appeal. In the event that the undertakings are not satisfied with the outcome of the ministerial review, they may approach the High Court of Namibia within a reason - able time to review that determination. 6.3 Cartels The main statute governing competition in Namibia is the Competition Act 2 of 2003, which aims to protect
and promote competition. It prohibits anti-competitive conduct, including agreements, practices and deci - sions between businesses that have as their object or effect the prevention or substantial lessening of competition, unless specifically exempted under the Act. The Act applies to anti-competitive conduct that has an effect within Namibia, irrespective of where the conduct or agreement originated. Anti-competitive conduct generally prohibited by the Act includes: • fixing prices; • dividing markets; • collusive tendering; • limiting or controlling production, market outlet or access, or investment; • resale price maintenance; • placing businesses at a competitive disadvantage; and • making contracts subject to acceptance by other parties of additional obligations that, by their nature or commercial usage, are unrelated to the subject of the contracts. The Act targets agreements/practices/conduct that occur between parties in a horizontal relationship, competitors operating on the same level of the sup - ply chain. From a practical outlook, this relationship involves an agreement between competitors to elimi - nate competition with the objective of capturing sales. These horizontal agreements significantly and directly affect the consumer markets as they result in higher prices, lower choices, and poorer quality of services and goods. The Act also addresses anti-competitive practices in vertical relationships which are between a business and its suppliers, customers, or both. For example, a supplier may require a retailer to purchase exclu - sively from it and bar the retailer from dealing with competing suppliers. The Competition Commission may investigate such conduct where it is likely to sub - stantially lessen competition in the relevant market. This type of exclusive dealing can prevent rival sup - pliers from accessing distribution channels and limit the range of brands available to consumers.
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