In much the same way that, within the European Union, a merger filing (notification) to the European Commission removes the need for filings to national competition authorities in the EU Member States, so too the COMESA Court of Justice has ruled that a merger filing (notification) to COMESA’s Competition Commission will remove the need for filings to national authorities in the COMESA Member State.
At the end of August 2013, the COMESA Court of Justice issued a ruling in the case of Polytol v Mauritius43about the applicability of the COMESA Treaty within COMESA Member States, including those Member States that have not yet adopted the Treaty as domestic law in their national jurisdictions.
Several Member States – including Kenya, Mauritius and Zambia – had taken the position that, in the absence of domestication into national law, the COMESA competition regulations are not enforceable in their jurisdictions – the result being that (in their view) parties to M&A transactions that are notifiable to the COMESA Competition Commission must also notify the national authorities in those countries where their notification requirements are triggered by the transaction concerned.
The COMESA Court of Justice rejected this view:
“The argument of [the Government of Mauritius] that the [COMESA] Treaty is not directly enforceable in some jurisdictions… is misconceived. It is indeed true that there are differences in legal systems regarding their position towards the domestication of international law. In some Member States, treaties become directly applicable; in others they require another domestic legal instrument for their incorporation. Notwithstanding the differences in domestic legal systems, the [COMESA] Treaty objectives can be achieved when all Member States fulfil their obligations under the Treaty. Any Member State that acts contrary to the Treaty cannot, therefore, plead the nature of its legal system as a defence when citizens or residents of that State are prejudiced by its acts.”
It seems, therefore, that parties to an M&A transaction that are notifiable to the COMESA Competition Commission can now resist any requirement to make notifications to national competition authorities within COMESA. That said, the enforcement of the COMESA Court of Justice’s judgments still requires the cooperation of national courts, and it is unclear at this stage how national courts which have not domesticated the COMESA Treaty will treat this judgment.