NAMIBIA Law and Practice Contributed by: James Smith and Daneale Beukes, Engling, Stritter & Partners
3.8 Pre-Notification Discussions With Authorities The parties can engage in pre-notification discussions with the NaCC. Such discussions are treated confi - dentially and are typically held when the proposed merger involves complex competition issues, when there are significant public interest issues to be con - sidered, or when the proposed merger involves sec - tors or issues of national interest. 3.9 Requests for Information During the Review Process Requests for information are provided for in Section 44 (2) of the Competition Act and are commonplace during the review process. A request for information stops the clock until the receipt of the information requested. Any requests for information after the initial period do not stop the clock. 3.10 Accelerated Procedure There is no official expedited or fast-track review pro - cess. The board of the NaCC does, on very rare occasions, determine merger notifications on a round-robin basis. The substantive test applied by the NaCC is the sub - stantial prevention or lessening of competition as provided for in Section 47 (2) of the Competition Act, which provides that the NaCC may base its determi - nation of a proposed merger on any criteria which it considers relevant, including: • the extent to which the proposed merger would be likely to prevent or lessen competition, or to restrict trade or the provision of any service, or to endan - ger the continuity of supplies or services; • the extent to which the proposed merger would be likely to result in any undertaking, including an undertaking not involved as a party in the proposed merger, acquiring a dominant position in a market or strengthening a dominant position in a market; 4. Substance of the Review 4.1 Substantive Test
• the extent to which the proposed merger would be likely to result in a benefit to the public which would outweigh any detriment which would be likely to result from any undertaking, including an undertaking not involved as a party in the proposed merger, acquiring a dominant position in a market or strengthening a dominant position in a market; • the extent to which the proposed merger would be likely to affect a particular industrial sector or region; • the extent to which the proposed merger would be likely to affect employment; • the extent to which the proposed merger would be likely to affect the ability of small undertakings, in particular small undertakings owned or controlled by historically disadvantaged persons, to gain access to or to be competitive in any market; • the extent to which the proposed merger would be likely to affect the ability of national industries to compete in international markets; and • any benefits likely to be derived from the proposed merger relating to research and development, technical efficiency, increased production, efficient distribution of goods or provision of services, and access to markets. 4.2 Markets Affected by a Transaction As regards defining the relevant market, the NaCC has drafted the NaCC Merger Guidelines, which are substantially informed by the ICN Merger Guidelines. In terms of the NaCC Merger Guidelines and the ICN Merger Guidelines, the market definition focuses on the empirical question of substitutability of products and services from the point of view of customers. The substitutability from both the demand and sup - ply sides is ordinarily considered. Demand-side substitutability considers the extent to which customers can switch among substitute prod - ucts in response to a change in relative prices or qual - ity or availability or other features. Supply-side substi - tutability, on the other hand, examines the extent to which suppliers of alternative products can alter their existing production facilities to make other products in response to a change in prices, demand or other market conditions.
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