Competition Amendment Bill

Unpacking the Competition Amendment Bill: Market Inquiries.

This briefing has been published by Neil Mackenzie, Johan Coetzee, Stephen Langbridge, Kathryn Lloyd and Stuart Strachan of Fasken South Africa, who have agreed to Simmons & Simmons making it available on elexica.

The Competition Amendment Bill seeks to address two key structural challenges in the South African economy: concentration, and the racially-skewed spread of ownership of firms in the economy.

At the 11th Annual Competition Law, Economics and Policy Conference in September 2017, the Minister of Economic Development, Ebrahim Patel, made the following comment when explaining how economic concentration might be tackled:

“It seems to me to be better that it be done through the trusted and predictable processes of competition regulation and its sound institutions than that it be left to laws that simply mandate the breakup of companies irrespective of the economic logic…”.

Market inquiries are seen as one of the five priorities in addressing this objective. The Background Note published with the Amendment Bill states:

The package of amendments… envisage that market inquiries will become the chief mechanism for analysing and tackling the structural problems in a market, thereby advancing the purposes of the Act. The proposed amendments to the chapter relating to market inquiries will enhance the market inquiry process and will ensure that its outcomes include measures to address concentration and the transformation of ownership.

What is a market enquiry?

The central concept of a market inquiry is to empower the Competition Commission to inquire into a market, and to decide on interventions and remedies to address any features of the market that would enhance competition and advance the purposes of the Competition Act.

The "adverse effect" test

The proposed amendments seek to establish a new test for market inquiries. That is, whether there are any features, or combination of features, in a market that prevent, restrict or distort competition in that market, which constitute an "adverse effect".

This would introduce a lower threshold, to enable intervention by the Commission in circumstances where features of a market impair competition.

When assessing "features" in a market, and in ultimately establishing an adverse effect, the proposed amendments provide that the Commission may look at the following:

  • market structure, including the level and trends of concentration and ownership in a market, barriers to entry in a market, as well as past or current advantage arising from state support
  • observed market outcomes, including prices, concentration, customer choice, employment, and entry and exit from a market
  • conduct, whether in or outside a market which is the subject of an inquiry, by firms that supply or acquire goods or services in the market concerned
  • conscious parallel or coordinated conduct, otherwise known as tacit collusion, and/or
  • conduct relating to the market which is the subject of the inquiry of any customers of firms who supply or acquire goods or services.

For insights about the Commission’s powers and the implications of the Competition Amendment Bill, click here.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.