COTE D’IVOIRE LAW AND PRACTICE Contributed by: Abdourahim Bodeen Diallo, Albert Dione, Tokpanan Doré, Joane-Dominique Bah, Thierno Moustapha Diallo, Mamadou Billo Barry and Nasrine Akrah, Thiam & Associés
investment thresholds (from 50 to 200 million CFA francs – approximatively EUR76,224 to EUR305,000 – for SMEs and large companies, and up to XOF30 billion – approximately EUR45,734,700 – for cer - tain sectors), or the declaration regime for business start-ups with no minimum threshold. In both cases, applications are submitted to CEPICI, the competent authority for their issuance. Mergers must be filed with the registry of the Com - mercial Court of Abidjan in accordance with Articles 194 and 198 of the AUSCGIE. Mergers involving credit institutions also require prior authorisation from the Ministry of Finance and Budget (Article 39 of the UEMOA Banking Law). Finally, mergers reaching the community thresholds defined by ECOWAS (20 million UA (UA typically stands for Unit of Account as defined by institutions like the African Development Bank (AfDB) and the West African Economic and Monetary Union (UEMOA) framework. It is a notional currency used for report - ing, budgeting, and regulatory thresholds.) in com - bined turnover or 5 million UA for at least two entities concerned) are subject to review by the ECOWAS Regional Competition Authority (ARCC). Competition In terms of competition, certain exemptions may be granted, either on the initiative of the ARCC or at the request of the companies concerned. These exemp - tions apply to any agreement or category of agree - ments between companies, decisions or concerted practices, in accordance with Article 35 of the imple - menting regulation on the ECOWAS Investigation and Notification Manual (INM). According to this text, the transactions concerned must pursue one or more of the following objectives: • contribute to improving the production or distribu - tion of goods; or • promote technical or economic progress, while ensuring that consumers receive a fair share of the resulting benefits. For an exemption to be granted, the agreement must not contain restrictions that are disproportionate or
unnecessary to the attainment of these objectives and must not eliminate competition for a substantial part of the products concerned. Furthermore, in accordance with Article 46 of the INM regulation, exemptions may also be granted at the request of the undertakings concerned in the public interest or by decision of the ARCC on grounds of public interest. Apart from mergers and investments subject to prior review by the competent authority, there is no mech - anism to our knowledge for reviewing investments before their completion. However, once the transactions have been complet - ed, competition rules apply to all economic activities, including those carried out by legal entities governed by public law (Article 43 of the Order No 2013-662 of 20 September 2013 relating to the Competition Act (the “Competition Act”)). Finally, it should be noted that, ex post control is car - ried out by various actors authorised to detect infringe - ments of competition rules, in particular agents of the competition control directorate, judicial police officers and rapporteurs of the competition and anti-poverty commission (Article 30 of the Competition Law). 6.2 Criteria for Antitrust/Competition Review Given the existence of the ARCC, this mechanism aims to assess the compliance of investments with competition rules in order to avoid any overlap or consolidation that could distort healthy and effective competition. Under the Competition Act, a merger is defined as: • the merger of two or more previously independent undertakings; • the acquisition of direct or indirect control by one or more persons or undertakings, whether through the acquisition of a shareholding, the purchase of assets, the conclusion of contracts or any other means, over all or part of one or more undertak - ings; and
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