Ecowas launches regional competition authority to streamline cross-border mergers

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The ERCA recently published on its website copies of legal instruments relating to competition law enforcement in the Ecowas Community. Amongst these are laws pertaining to merger control.

Regulation C/REG.23/12/21 issued in December 2021, read with Enabling Rules PC/REX.1/01/24 issued in January 2024, provide for a mandatory merger notification regime. This regulatory framework requires parties to notify the ERCA of merger transactions where the parties operate in at least two Ecowas member states and meet specific financial thresholds.

On 2 October 2024, members of the Ecowas Council of Ministers (Council) will be sworn in before the President of the Community Court of Justice. As such, the ERCA will, for the first time since becoming operational in May 2019, be in a position to issue decisions on competition and consumer protection matters, including merger control.

Ecowas Member States

Ecowas is a regional economic bloc, comprising 15 member states, namely, Benin, Burkina Faso, Cabo Verde, Cote d’Ivoire, Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone, and Togo.

Several Ecowas member states have operative national competition authorities and their own merger control regimes, including Cabo Verde, Gambia, Mali, and Nigeria.

Benin, Burkina Faso, Côte d'Ivoire, Guinea-Bissau, Mali, Niger, Senegal, and Togo are also members of the West African Economic and Monetary Union (WAEMU), where competition law is regulated by the WAEMU Commission.

However, the WAEMU merger control regime is voluntary and non-suspensory. Notably, Burkina Faso, Mali and Niger have signed a confederation treaty declaring their irrevocable decision to withdraw from the Ecowas regional bloc. As at the date of writing, this decision has not been ratified.

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Concurrency of jurisdiction

Supplementary Act A/SA.1/12/08 Adopting Community Competition Rules and the Modalities of their Application within Ecowas (as amended) (Community Rules) and relevant supporting instruments confirm the primacy of the ERCA's jurisdiction over conduct “likely to have an effect on trade within Ecowas” and “acts, which directly affect regional trade and investment flows and/or conduct that may not be eliminated other than within the framework of regional cooperation”.

The Community Rules also require the ERCA to “co-operate with national and regional competition agencies in taking measures necessary to ensure implementation of the obligations arising from” the Community Rules.

The ERCA aims to operate as a 'one-stop-shop' for cross-border transactions meeting the Ecowas financial thresholds for merger notification. Where a merger is notified to the ERCA, the clear intention is that separate notifications to national authorities will not be required, although it will be important that national authorities express alignment with this, so that merging parties have certainty that a ‘one-stop-shop’ approach to mergers is supported by the ERCA and all national authorities.

Thresholds for merger notification

The Community Rules apply to mergers and acquisitions of undertakings operating in at least two Member States if:

• the combined aggregate turnover or a relevant balance sheet item of all merging enterprises within the Common Market exceeds Units of Account 20 million (possibly approx. €24.3m); or
  
• the aggregate Common Market-wide turnover or a relevant balance sheet item of at least two entities engaged in the merger or acquisition exceeds Units of Account 5 million (possibly approx. €6m).

The ERCA has expressed that conversions from foreign currency to Units of Account may be effected using data available on the West African Monetary Agency website.

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Merger filing fee

The merger filing fee is calculated at “0.1% of the combined annual turnover or the combined value of assets of the companies in the Community, whichever is higher.” There is no statutory cap on the filing fee, which may cause concern for parties having to notify the ERCA.

Merger review period

The maximum merger review period is 135 days, comprising:

• an initial 60 days from the date of receipt of the notification, extendable by 30 days, for the ERCA to make a recommendation to the Council; and
  
• an additional 30 days from the date of receipt of the recommendation, extendable by 15 days, for the Council to make its decision regarding a merger.

It is unclear from the legislation whether these are calendar or business days. Additionally, it is not clear from the legislation how frequently the Council will meet to take decisions, including mergers.

Suspensory/non-suspensory regime

It is not entirely clear whether the merger control regime is suspensory or non-suspensory, although it seems likely that it will be suspensory.

Future guidelines

The ERCA intends to issue guidelines to clarify its approach. However, the timeline for the publication of guidelines is not yet known.

The operationalisation of the ERCA and the introduction of a mandatory merger notification regime mark further important legal developments for businesses transacting in Africa.