The publication of Government Gazette No. 288 and 289 of 2012 on Friday 7 December 2012 has given rise to two new developments in Namibian competition law.
Firstly, despite having a functioning competition law regime for almost a decade, the Namibian competition authorities published monetary merger notification thresholds for the first time on Friday, 7 December 2012.
Prior to the publication of these thresholds, parties seeking to implement any transaction meeting the definition of a “merger” (as contemplated in section 42 of the Namibian Competition Act No 2 of 2003) were obliged to notify the transaction to the Namibian Competition Commission and procure its approval for implementation.
Going forward, the publication of these monetary thresholds will limit the class of mergers requiring notification to and approval from the authorities prior to implementation. Government Gazette No. 288 of 2012 stipulates that the merger provisions of the Namibian Competition Act will not find application where:
- The combined annual turnover in, into or from Namibia or the combined assets in Namibia of the acquiring and the target undertakings (or any combination thereof) are valued below N$ 20 million; or
- The target undertaking’s annual turnover in, into or from Namibia or the asset value of the target undertaking in Namibia is less than N$ 10 million.
Despite the foregoing, where the Namibian Competition Commission considers it “necessary” to deal with a merger (albeit that the merger falls below the thresholds stipulated above) it may call upon the merging parties to submit a compulsory merger notification to it within 30 days of written demand to do so. Interestingly, it would appear that the Namibian Competition Commission is free to call for such a merger notification in perpetuity and is not restricted by any particular time period within which to do so as the South African competition authorities are.
Secondly, Government Gazette No. 289 of 2012 also sets out criteria for determining a dominant position in the market as contemplated in section 25 of the Namibian Competition Act. In this regard, the authorities have indicated that the abuse of dominance provisions in the Namibian Competition Act will only find application in respect of an undertaking whose annual turnover in, into or from Namibia or whose assets in Namibia are valued at or above N$ 10 million. Any firm whose annual turnover or asset value in Namibia falls below this threshold cannot be found to have abused a position of dominance in a relevant market.
Together with the aforementioned thresholds / criteria, the authorities have also made guidelines available to assist undertakings in the calculation of the asset / turnover figures contemplated above.
Given that these thresholds are relatively low it remains to be seen whether they in reality serve to exclude a significant number of merger transactions and abuse of dominance complaints from the jurisdiction of the Namibian competition authorities. From our experience in South Africa (in which the first monetary merger thresholds published were amended several times), it seems likely that these thresholds may be increased in time to effectively limit the class of transactions falling within the jurisdiction of the Namibian competition authorities as notifiable mergers.