SEYCHELLES Law and Practice Contributed by: Valery Freminot, Salina Sinon, Ruby Simeon and Hazel Naiken, Rivard Nariman
Under the Fair Trading Act 2022, the parties to the proposed merger are required to submit an application to the Commission. The Commis - sion determines whether the proposed merger is notifiable. The notification threshold is set at the combined annual turnover or value of assets in Seychelles equalling or exceeding SCR10 million as calculated at the end of the most recent finan - cial year. This is calculated by adding together the annual turnover value or value of assets of the enterprise concerned, its subsidiaries, its parent companies, and the other subsidiaries of its parent company. It is a requirement for the proposed merger to have a minimum trading activity in Seychelles. 6.2 Merger Control Procedure Any enterprise proposing a merger must submit an application form to the Fair Trading Commis - sion with payment of a non-refundable appli - cation fee of SCR1,500. Upon approval of the merger, the parties concerned will be subject to an approval fee calculated on the basis of their combined turnover from the preceding financial year. If the threshold for combined turnover or asset value exceeds SCR10 million, the fee is set at 0.1% of combined turnover and asset value. If it exceeds SCR25 million, the fee is set at 0.5%. Once the Commission has received the appli - cation, it has 120 days to review the proposed merger, make its decision and submit it to the Fair Trading Tribunal for approval. The Commis - sion may recommend that the Fair Trading Tribu - nal allow the merger without conditions, or allow it subject to certain conditions, or it may recom - mend that it prohibit the operation altogether. The conditions recommended by the Commis -
sion constitute necessary and reasonable steps to mitigate any adverse competitive behaviour. The Fair Trading Tribunal may accept the recom - mendations of the Commission with or without modifications or it may issue any instructions that it may consider appropriate. Any merger not permitted by the Fair Trading Tribunal has no legal effect and any rights or obligation imposed on the parties to the merger will not be enforce - able. 6.3 Cartels The Fair Trading Act 2022 prohibits two types of anti-competitive agreement: horizontal and vertical anti-competitive agreements. Horizontal Agreements Section 126 of the Fair Trading Act 2022 prohib - its enterprises in a horizontal relationship from engaging in anti-competitive agreements and concerted practices. Anti-competitive agree - ments/practices may take the form of price fix - ing, division of markets, collusive tendering, bid rigging, and control of production in the market. Also, any agreement between enterprises that has the object or effect of preventing, restrict - ing or distorting competition in a market is pro - hibited. Acceptable grounds of exemption are technological progress, efficiency purpose, and Section 127 of the Fair Trading Act 2022 prohib - its enterprises in a vertical relationship to engage in anti-competitive agreements or concerted practice if the object or effect is to prevent, restrict or distort competition in the market. If a party can prove technological, efficiency or other pro-competitive gains that outweigh the effect, then this prohibition would not apply. public interest gains. Vertical Agreements
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