NAMIBIA Law and Practice Contributed by: James Smith and Daneale Beukes, Engling, Stritter & Partners
• be likely to affect the ability of small undertakings, in particular small undertakings owned or con - trolled by historically disadvantaged persons, to gain access to or to be competitive in any market; and • be likely to affect the ability of national industries to compete in international markets. There are no rules relating to foreign subsidies; how - ever, as regards foreign direct investments or foreign subsidies, please refer to 1.2 Legislation Relating to Particular Sectors . 4.7 Special Consideration for Joint Ventures The NaCC applies the same analytical framework as for other mergers, namely, whether the transaction is likely to substantially prevent or lessen competition in any market in Namibia. In assessing a joint venture, certain additional consid - erations relating to possible collusion or co-ordination may arise. The NaCC will consider whether the crea - tion of the joint venture could lead to co-ordination between the parent companies outside of the joint venture itself. This would be applicable where the par - ent companies would remain competitors in related or downstream markets and where the joint venture might facilitate the exchange of commercially sensi - tive information, or where the joint venture might cre - ate conditions conducive to co-ordination or collusion. 5. Decision: Prohibitions and Remedies 5.1 Authorities’ Ability to Prohibit or Interfere With Transactions The NaCC does not interfere with transactions prior to notification or outside its statutory authority. The Competition Act does empower the NaCC to pro - hibit a transaction, or to approve a transaction subject to conditions, where it determines that the merger is likely to substantially prevent or lessen competition or otherwise contravene the Competition Act. In making its determination, the NaCC must apply the substantive test set out in Section 47 (2), consider - ing, among other things, whether the merger would
be likely to prevent or lessen competition, restrict trade, or create or strengthen a dominant position, and whether any public benefits outweigh the poten - tial anti-competitive effects. If the NaCC determines that a merger is likely to sub - stantially prevent or lessen competition, it may either prohibit the transaction entirely or approve it condi - tionally. Therefore, while the NaCC does not interfere in the negotiation or commercial terms of transactions, it may lawfully prevent completion or impose conditions if the transaction is found to have anti-competitive effects. 5.2 Parties’ Ability to Negotiate Remedies When the NaCC identifies potential competition or public interest concerns during its merger assess - ment, the merging parties are ordinarily afforded the opportunity to engage with the NaCC and propose remedies to address those concerns before a final decision is made. Remedies are often used to address non-competi - tion issues, particularly the public interest considera - tion of employment. In addressing this, the NaCC often imposes conditions prohibiting merger-related retrenchments for a specified period. 5.3 Legal Standard There is no single codified test or standard for the acceptability of remedies under the Competition Act; however, in line with comparative international best practice, the NaCC generally imposes remedies if: • there is a causal link to the identified harm; • the remedies are proportionate and necessary; • the remedies are clear, enforceable, and capable of monitoring; and • the remedies restore or preserve competition. 5.4 Negotiating Remedies With Authorities There are no formal procedural rules prescribed under the Competition Act or the NaCC Merger Guidelines regarding when or how remedy negotiations must occur. In practice, the NaCC adopts an administra - tive approach to remedies.
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