Enforcement proceedings in dominance in Morocco

Enforcement proceedings

Which authorities are responsible for enforcement of the dominance rules and what powers of investigation do they have?

Under Law No. 20-13 and the Law, the Competition Council, in addition to its consultative role to the parliament, the government, the courts and various organisations (article 5 of Law No. 20-13 relating to the Competition Council), is granted the decision-making power over abuses of dominance cases. The Competition Council may be adopted by the undertakings and is now able to avail itself of practices (articles 3 and 4 of Law No. 20-13 relating to the Competition Council).

The Competition Council is also granted powers of investigation. The President of the Competition Council is entitled to ask the administration to carry out any useful investigation and to call on relevant expertise. The investigations will be carried out by inspectors, including case officers of the Competition Council, administrative officials and price controllers. The officers are entitled to visit any premises, land or transport employed for professional use, to request the communication of all professional documents (including books and bills) and copy them, and to collect any information and justification (article 68 and following of the Law).

If an undertaking or related organisation does not comply with a summons, does not respond within the time limit to an information or a document request of the Competition Council or obstructs the investigation (eg, by providing false or incomplete documents), sanctions are applicable.

What sanctions and remedies may the authorities impose? May individuals be fined or sanctioned?

The Competition Council, under the Law, is, in particular, empowered to:

• adopt conservatory measures (article 35 of the Law);
• order the firm to put an end to its abusive practice or impose specific conditions (article 36 of the Law);
• accept remedies proposed by the firm to remove the competition concerns (article 36 of the Law); and
• impose a fine, either immediately or where the firm does not comply with an order or does not respect an accepted remedy (article 39 of the Law).

If the offender is not a company, the maximum amount of the penalty is 4 million dirhams. The maximum amount of the penalty for a company is 10 per cent of the highest worldwide or national (if the firm does not have international activities) turnover, net of tax, achieved in one of the financial years ended after the financial year preceding that in which the practices were implemented. If the accounts of the company concerned have been consolidated or combined by virtue of the texts applicable to its legal form, the turnover taken into account is that shown in the consolidated or combined accounts of the consolidating or combining company.

The fine takes into consideration the seriousness of the offence, the scale of the damage caused to economy and the situation of the company.

The maximum amount of the applicable fine may be doubled in the event of a subsequent offence within five years.

The maximum amount of this fine may be reduced by half if the company does not contest the facts (article 37 of the Law).

A transaction may also be proposed by the competent governmental authority to undertakings whose abusive practices affect a local market, provided that their turnovers do not exceed certain thresholds (article 43 of the Law).

Moreover, the Competition Council may refer the matter to the King’s Prosecutor at the relevant first instance court if the facts are likely to justify the application of article 75 of the Law, which provides that a natural person who fraudulently or knowingly takes a personal and decisive part in the conception, organisation or implementation of the practices referred to in article 7 shall be punished by a prison sentence of between two months and one year and a fine of between 10,000 and 500,000 dirhams.

Finally, it should be noted that the Competition Council could, in the event of an abuse of a dominant position, enjoin, by a reasoned order, the undertaking or group of undertakings to amend, supplement or cancel, within a specified period, all agreements and all acts by which the concentration of economic power allowing the abuse has been carried out, even if these acts have been subject to the merger control procedure (article 20 of the Law).

Can the competition enforcers impose sanctions directly or must they petition a court or other authority?

Under the Law, the Competition Council is empowered to impose sanctions directly to the abusive undertakings without petition a court or another authority.

If the facts are likely to justify the application of article 75 of the Law (which provides that a natural person who fraudulently or knowingly takes a personal and decisive part in the conception, organisation or implementation of the practices referred to in article 7 shall be punished by a prison sentence of between two months and one year and a fine of between 10,000 and 500,000 dirhams), the Competition Council shall, however, refer the matter to the King’s Prosecutor at the relevant first instance court.

What is the recent enforcement record in your jurisdiction?

Because Law No. 20-13 and the Law have only taken effect after the appointment of the new members of the Competition Council, which occurred at the end of 2018, no opinion or annual report has been issued by the Competition Council since 2013.

Between 2009 (the year of its reactivation) and 2013, the Competition Council had, on average, issued several opinions and studies each year relating to abusive practices. In its latest annual report, issued in 2013, the Competition Council rendered an opinion relating to the market of the sale of plane tickets in which the legality of Royal Air Maroc’s commercial policy was examined. In this case, travel agencies accused Royal Air Maroc of abusing its dominant position by selling some preferential rate tickets exclusively through its own website. However, the Competition Council considered that this practice did not constitute an abuse of Royal Air Maroc’s dominant position.

It should be noted that, in 2016, a complaint was lodged against the company BeIN Sports for abuse of dominant position related to the conditions of broadcasting the UEFA soccer championship in Morocco.

Where a clause in a contract involving a dominant company is inconsistent with the legislation, is the clause (or the entire contract) invalidated?

According to article 10 of the Law, any commitment, agreement or contractual clause referring to a practice prohibited by article 7 shall be null and void. This nullity may be invoked by the parties or by a third party (but may not be raised by the parties against a third party) and may be declared by the courts having jurisdiction (to which the Competition Council’s opinion or decision, if any, shall be communicated and which can also consult the Competition Council).

To what extent is private enforcement possible? Does the legislation provide a basis for a court or other authority to order a dominant firm to grant access, supply goods or services, conclude a contract or invalidate a provision or contract?

Private enforcement is possible before the courts to which the Competition Council’s opinion or decision, if any, may be transferred, in order to obtain, in particular, the invalidity of an agreement or contractual clause referring to a practice prohibited by article 7.

Moreover, article 106 of the Law provides that registered consumers’ associations may obtain compensation of the prejudice suffered by the consumers by filing a civil suit. Moroccan law is not clear as to whether individuals may claim damages before civil courts without a previous investigation by the Competition Council.

The Law provides a basis upon which the Competition Council may order a dominant firm to grant access to infrastructure or technology, supply goods or services or to conclude a contract, as the Law entitles the Competition Council to impose specific conditions, to accept remedies proposed by the dominant firm to remove the competition concerns (article 36 of the Law) or to enjoin, by a reasoned order, the undertaking or group of undertakings to amend, supplement or cancel, within a specified period, all agreements and all acts by which the concentration of economic power allowing the abuse has been carried out (article 20 of the Law).

Do companies harmed by abusive practices have a claim for damages? Who adjudicates claims and how are damages calculated or assessed?

Companies harmed by abusive practices have a claim for damages before the courts, which assess the damage suffered by the plaintiff. Unfortunately, the decisions of the Moroccan courts (which have jurisdiction to grant damages for an abuse of a dominant position) are very difficult to access, and, therefore, we are not able to provide any examples.

To what court may authority decisions finding an abuse be appealed?

The decisions of the Competition Council may be appealed to the Court of Appeal of Rabat within 30 days from the date of receipt of the notification (articles 44 and 46 of the Law). When the Court of Appeal annuls or invalidates a decision, it is required to give a ruling on the case without referring it.