FAQ'S

When was the Competition Authority set up?

The Competition Authority (CA) was set up on April 18, 2011 when the CEO first reported for work. In terms of implementing the Competition Act, the CA started operating on October 14, 2011 when the Competition Regulations were gazetted by the Minister of Trade and Industry.

Is the Competition Authority independent?

The Competition Authority has been established by an act of Parliament. It is a parastatal that falls under the Ministry of Trade and Industry and reports to the Competition Commission.

What is the difference between the Competition Commission and the Competition Authority?

The Competition Authority is the investigative arm on competition matters, while the Competition Commission is the adjudicative arm. The Competition Commission also serves as the Board of the Authority.

Does the Competition Authority regulate prices?

No, the CA does not regulate prices, they are left to the dictates of the market. The CA promotes fair competition in the market.

Does the Competition Authority mandate extend to state created monopolies?

The Competition Act does not empower the CA to investigate State enterprises. However, the Act mandates the CA to advise the Government on any laws or policies that hinder competition in the market.

Does the Competition Authority have regional offices?

Currently there is only one office in Gaborone that serves the whole country. In future, depending on availability of funds, there are plans to have regional office(s).

Does the Competition Authority have any relationships with other regulators?

Yes, section 73 mandate sthe CA to establish cooperation mechanisms with other sector regulators. Currently memoranda of understanding have been signed with signed with the Public Procurement and Asset Disposal Board (PPADB), the Directorate on Corruption and Economic Crime (DCEC), the Civil Aviation of Botswana (CAAB), the Non-Bank Financial Institutions Regulatory Authority (NBFIRA) and the Bank of Botswana.

When is a merger/acquisition notifiable?

A merger should be notified to the Competition Authority if the target enterprise (i.e. the enterprise that is being taken-over or bought in Botswana) has assets or turnover that exceeds BWP 10 million or if the enterprises involved in the merger would, following implementation of the merger, supply or acquire at least 20 per cent of a particular market of goods or services in Botswana.

The 10 million pula merger threshold is too low, what informed it?

The Authority looked at what other countries that Botswana could compare with had such as Namibia, Swaziland and Zambia. The threshold could be low and may be considered for future review.

In the case where a company or enterprise is dormant, bankrupt, new or is to be liquidated, should it notify the Authority when another company takes over?

Yes they should notify. However, following Regulation 16 (3)(a) and (b) of the Competition Act, an enterprise that has been bankrupt for a period of three consecutive financial years or that disposes its assets through the liquidation process shall not pay a merger notification fee.

What happens to companies that merged before the commencement of the Competition Act?

The Act does not apply retroactively. The Authority can only deal with mergers that take place after the commencement of the Act. If a merger that took place before the commencement of the Act created a dominant firm, the Authority will look at the conduct of that firm.

What is the role of the Authority in situations where there is a merger outside Botswana?

If a company has subsidiaries, or other commercial activities through agents or distributors in Botswana, the merger has to be notified to the Authority in Botswana.

If a member of the public has concerns or information on a proposed merger, what should they do?

They may submit their views on the proposed merger immediately to the Authority. Merger notices are published in local newspapers, Facebook and Website for public comment.

Can an application for a merger be rejected?

An application for a merger can either be approved, approved with conditions or rejected.

Is the decision of the Competition Authority on a merger final?

The decision of the Competition Authority on a merger is final and the aggrieved party cannot appeal to the Commission but, can only appeal to the High Court.

If enterprises merge without authorisation, what would the Competition Authority do?

The Authority may give a direction to the company or companies involved – (a) not to complete or implement the merger; (b) to sell or dispose of in any other specified manner, any share, interest or other assets it has acquired pursuant to the merger; (c) to terminate any agreement, or provisions of an agreement, to which the merger was subject; and (d) to take such further measures as may be necessary to restore the conditions of competition existing prior to the merger.

Can the Competition Authority revoke an approved merger?

Yes. The Authority may at any time revoke a decision approving the implementation of a merger if – (a) the decision was based on materially incorrect or misleading information for which a party to the merger is responsible; or (b) any condition attached to the approval of the merger that is material to the implementation is not complied with.

FAQ'S

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