The Competition Commission of South Africa (Commission) has called on interested parties to comment on draft revised Public Interest Guidelines related to merger control within 30 days.
According to Legal firm Webber Wentzel, since the amendment of the Competition Act a few years ago, the public interest component of merger regulation had achieved particular prominence.
“Over the 2021/22 financial year, at least a quarter of all mergers were approved subject to public interest conditions. As a result, businesses have been eager for clearer guidance from the competition authorities on when public interest conditions will be applied and how these conditions should be structured,” it said.
In a statement yesterday, the Commission said in February 2019, the Competition Act 89 of 1998 was amended to address concentration and the lack of transformation in the South African economy.
“The public interest provisions in merger control were amended to specifically include public interest grounds to address ownership, control, and support of small businesses and firms owned or controlled by historically disadvantaged persons,” it said.
According to the Commission, the draft revised guidelines outline its approach to the public interest assessment...and aim to provide certainty to merger parties and the legal fraternity about the Commission’s approach to the public interest assessment.
“The draft revised guidelines now clarify that the competition and public interest assessment are equal in status, and that a public interest assessment is mandatory in all merger transactions, whether or not they are likely to result in a substantial lessening or prevention of competition.
Webber Wentzel said although the Commission's guidelines, once adopted, will not have the status of enforceable legislation, they nevertheless provide a clear indication of how the Commission is likely to approach the public interest element of merger regulation in South Africa, and how it intends to marry the transformational imperatives that underscore the Competition Act with the requirement for greater certainty in merger regulation.