DRC Law and Practice Contributed by: Serge Nawej Tshitembu, Xavier Huberland, Daniel Yamba and Katerina Papachristou, ProximA International
6.2 Merger Control Procedure In the DRC, any transaction involving a merger, acquisition of control, or formation of a joint ven - ture must be assessed under three potentially overlapping legal regimes: national competition law, OHADA corporate law and – where applica - ble – interregional merger control frameworks, notably COMESA. 1. National Merger Control The Law on Pricing Freedom and Competition establishes a formal merger control regime in the DRC. Prior notification to the Competition Com - mission is mandatory for concentrations that: • exceed turnover or market share thresholds (pending official regulation); • involve parties jointly controlling 25% or more of a relevant market; or • are likely to create or reinforce a dominant market position. Once a complete file is submitted, the Commis - sion has 45 days to issue a technical opinion. The final decision is rendered by the Minister of National Economy, after mandatory consulta - tion with the relevant sectoral minister (eg, for mining, banking, hydrocarbons, telecoms or energy), as required under Article 51 of the Law. The Minister must respond within 60 days, or 90 days in exceptional cases. Standstill obligations apply during this period, and early implementa - tion exposes the parties to fines, annulment or structural remedies. 2. OHADA Company Law From a corporate law perspective, AUSCGIE under OHADA governs the legal formalities of mergers, demergers and restructurings. Although it does not contain merger control pro - visions per se, it requires:
• approval by corporate bodies; • drafting of a merger agreement; • notification to shareholders and creditors; and • filing with the RCCM and publication. Failure to follow OHADA procedures may render the transaction null, even if it complies with com - petition rules. The two systems must therefore be approached in parallel. 3. COMESA and Interregional Merger Review The DRC is a member of COMESA. Under the COMESA Competition Regulations (2004) and the Merger Assessment Guidelines (2014), cer - tain mergers with a regional dimension must be notified to the COMESA Competition Commis - sion (CCC) if: • at least two of the merging parties operate in COMESA member states; and • the combined turnover or asset value exceeds the thresholds set by COMESA (cur - rently USD50 million). In such cases, a regional notification to the CCC takes precedence over national notifica - tions, and clearance must be obtained before implementation in any member country. How - ever, national authorities retain a consultative role, and dual compliance may still be expected in the DRC due to the absence of explicit legal harmonisation. The CCC is also empowered to consider public interest and cross-border com - petition concerns, particularly in sectors such as telecoms, cement, banking and extractives. Other regional instruments – such as CEMAC (not applicable in the DRC) and SADC competi - tion co-ordination – may also influence transac - tions where multiple jurisdictions are involved.
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