MAURITIUS Law and Practice Contributed by: Sameer Tegally, Sonia Xavier and Ashvan Luckraz, Venture Law
6.2 Criteria for Antitrust/Competition Review The standard under which a merger or anticipated merger will be assessed is whether it has resulted in, or is likely to result in, a substantial lessening of com - petition (SLC). In determining whether an SLC has occurred or is like - ly to occur, the Competition Commission will conduct a structured analysis and report it, giving reasons to the merging parties and in public, in its decision. The assessment of competitive effects goes through four stages (not necessarily in sequence): • market definition; • counter-factual (what would have happened with - out the merger); • assessment of entry constraints; and • theory of harm and effects. The Competition Commission will form an expec - tation using all relevant evidence it can reasonably obtain. Parties to the Commission’s investigation are welcome to submit evidence, but should be prepared to demonstrate the truth of any assertions they make about market conditions in the form of evidence of actual behaviour in the market. 6.3 Remedies and Commitments In the case of a prospective merger, the Competition Commission may require an enterprise to: • desist from completion or implementation of the merger insofar as it concerns a market in Mauritius; • divest such assets as directed within a specified period before the merger can be completed; and • adopt or desist from such conduct, including conduct in relation to prices, as a condition of pro - ceeding with the merger. In the case of a completed merger, the Competition Commission may require an enterprise to divest itself of such assets and adopt or desist from such conduct, including conduct in relation to a process, as a con - dition of maintaining or proceeding with the merger. 6.4 Antitrust/Competition Enforcement The Competition Commission may, through a written direction, block or challenge FDI (see 6.3 Remedies
and control, where at least one operates in Mauritius or through a Mauritian-incorporated company. Notification is strongly advisable if any of the following conditions are present: • one or all of the merging enterprises is a significant player in the economy; • one or all of the merging enterprises is a significant player in a given market; • one or all of the merging enterprises have signifi - cant market shares; • the turnover or assets of the enterprises are signifi - cant (indicatively above MUR100 million); and/or • the products supplied or acquired by the merging enterprises are related (either horizontally, vertically, or complementary). A party to a prospective merger must notify the Com - petition Commission if either one party or the com - bined parties hold more than 30% market share in any market for goods or services, and the merger is likely to result in a substantial lessening of competition. There is no specific timeline for notification. Therefore, the Competition Commission may be notified of a pro - spective merger at any point in time; however, parties are encouraged to notify the Competition Commission as soon as a firm intention to enter into the proposed transaction has been formed, as there may be certain queries, and the Competition Commission may take some time to provide its views on the transaction. With regard to the specificities of each merger situa - tion, the Competition Commission is flexible with its information requirements, depending on the nature of the merger transaction and the products/markets involved. The Competition Commission may require either: • a complete notification/full form notification (all information therein must be provided to the Com - petition Commission); or • a short form notification (must be pre-agreed with the Competition Commission).
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