NAMIBIA Law and Practice Contributed by: James Smith and Daneale Beukes, Engling, Stritter & Partners
Negotiation of remedies typically occurs after the NaCC has identified potential competition or public interest concerns, usually shortly prior to the finalisa - tion of their determination. The NaCC proposes and drafts remedies on its own initiative. These conditions are presented to the par - ties in draft form for their comment; however, there is no statutory requirement that remedies must originate from the merging parties. Consequently, the NaCC often imposes remedies not agreed to by the parties. 5.5 Conditions and Timing for Divestitures There is no formal standard procedure for remedies under Namibian merger control. The NaCC imposes conditions based on the specific circumstances of each matter, and as a result, conditions are typically tailored and differ from case to case. Ordinarily, conditions are set with a timeframe within which the parties must comply. In practice, merger implementation can often occur before all conditions are fully complied with; however, it is possible that certain conditions that are material to the merger’s implementation are required to be fulfilled prior to completion. Section 48 (1) of the Competition Act empowers the NaCC to revoke a decision approving the implementa - tion of a proposed merger if any condition attached to the approval of the merger that is material to the implementation thereof is not complied with. 5.6 Issuance of Decisions Section 47 (7) of the Competition Act provides that the NaCC must give notice of the determination to the parties involved in the proposed merger in writing and give notice in the Government Gazette, the latter of which is available to the public. 5.7 Prohibitions and Remedies for Foreign-to- Foreign Transactions The NaCC does not often prohibit foreign-to-foreign transactions owing to the often limited impact on the Namibian market. However, in 2022, the NaCC in AKZO Nobel // Kansai Plascon Africa Ltd and Kansai Plascon East Africa
(Pty) Ltd, Case Number 2022NOV0048MER, involv - ing a foreign-to-foreign merger, imposed substantial conditions relating to vertical foreclosure in Namibia. The NaCC has not to the authors’ knowledge recently prohibited any foreign-to-foreign transaction. 6. Ancillary Restraints and Related Transactions 6.1 Clearance Decisions and Separate Notifications The Competition Act does not expressly provide a framework for the assessment of ancillary restraints within merger proceedings. However, in practice, the NaCC’s merger clearance decision is understood to cover restrictions that are directly related and neces - sary to the implementation of the merger. Ancillary restraints that are reasonable in scope, dura - tion and geographic reach, and which are necessary to give effect to the merger, are deemed to fall within the merger clearance decision and do not require a separate notification. Any restraint or arrangement that extends beyond what is necessary to implement the merger may be treated as a restrictive business practice and could require separate investigation by the NaCC. 7. Third-Party Rights, Confidentiality and Cross-Border Co-Operation 7.1 Third-Party Rights The NaCC may, in certain instances, seek the views of third parties as part of its merger review process. During its investigation, the NaCC typically contacts competitors and customers of the merging parties, and other market participants, to obtain their views and to assess the potential effects of the proposed merger on competition within the relevant market. Where a proposed merger raises significant competi - tion or public interest concerns, the NaCC may con - vene a stakeholders’ conference in terms of Section 46 of the Competition Act to allow affected or interest -
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