The prohibited anti-competitive conduct under the ICCC Act is referred to as Market Conduct Rules (MCR). The MCR plays a crucial role in regulating anti-competitive commercial arrangements and safeguarding market competition. The ICCC enforces the MCR by investigating potentially anti-competitive conduct and taking appropriate corrective actions. The corrective actions may include asking the alleged perpetrators to cease engaging in the conduct or taking legal action against them for potential breaches of the ICCC Act.

The ICCC may initiate its own investigations or upon receiving a complaint from anyone.

Any potentially anti-competitive complaints can be lodged with the ICCC for investigation and if necessary, appropriate corrective actions. Complaints can be made through phone calls, walk-in interviews, social media messages, online complaint forms on the website, or formally written correspondences. Any person – competitors, other businesses, consumers, employees, regulators, etc. – can lodge a complaint with the ICCC.

When the ICCC receives a complaint, it screens it to ensure the alleged anti-competitive conduct is likely to raise competition concerns under any of the MCR. It then registers it and undertakes a preliminary assessment to determine whether or not the complaint amounts to a prima facie case. If it doesn’t, the ICCC advises the complaint of its findings and reasons not to pursue the case. Where there is a prima facie case, the ICCC undertakes a detailed analysis to ascertain whether a breach of the ICCC Act has occurred from the alleged conduct. There is no time limit to handling a complaint, however, as a rule of thumb; complaints are dealt with as expeditious as possible.

If the issues raised in the complaint are outside of the ICCC’s competition mandate, these are referred to the relevant authorities; and the complainant is informed accordingly.

If you wish to make a complaint about an alleged breach of the ICCC Act we ask that you contact the ICCC and supply the following information.

When you lodge a complaint, ensure to supply the following key information:

The investigation process begins when complaints have been assessed that it is likely to raise serious competition concerns under one of the prohibited MCR.  The investigation continues until the ICCC concludes whether or not the relevant provision(s) of the ICCC Act is likely to be breached.

The ICCC has strong investigative powers. It can voluntarily seek information or do so forcefully. The ICCC can summon alleged perpetrators and or a potential witness to give information. A Statutory Notice will be issued to provide a written response, and a compulsory interview can be conducted to give information and evidence on oath.

Throughout the investigation process, the ICCC collects information or evidence, conducts interviews with relevant parties, and undertakes a thorough analysis to determine the existence and extent of anti-competitive behavior. If an investigation reveals any violations of the MCR, appropriate enforcement actions are taken, such as requesting parties to cease engaging in anti-competitive conduct or take legal action against them.

The prohibition against business mergers and acquisitions fundamentally lies on the test of a substantial lessening of competition. The prohibition relates to the structure of the market rather than to the behavior in that market. Acquiring shares or assets of other businesses that would result in a substantial lessening of competition in a market without the approval of the ICCC can raise serious competition concerns for the ICCC. It is prohibited by law because the acquisition of one competitor by another can have just as much serious anti-competitive consequences as the MCR.

The merger function of the ICCC also requires that a business merger or acquisition would meet the mandatory notification, the acquiring party must notify the ICCC in advance through a Clearance application before completing the transaction. Failure to do so may result in a default fine of K750,000.00. This is apart from any investigation for substantial lessening of competition concerns.

The ICCC Act allows the ICCC to formally approve otherwise anti-competitive business acquisitions through the adjudication processes of Clearance or Authorization. A Clearance or Authorization granted by the ICCC for a particular transaction provides immunity from the application of the ICCC Act.

It is required that the acquiring party apply for Clearance. The ICCC can also direct a party who has applied for clearance to apply for Authorization instead if the ICCC believes that the transaction subject of the Clearance application should be considered under the Authorization process. The ICCC can give a Clearance if it is satisfied that the proposed acquisition would not have any effect of substantially lessening competition in a market. Where Clearance is sought, the ICCC only assesses the competition effects of the proposed acquisition.

If there are serious anti-competitive effects that may likely arise from the proposed acquisition, the ICCC is required by law not to approve the proposed merger or acquisition. There has to be clear and sufficient evidence to show that the proposed merger or acquisition would not give rise to any substantial anticompetitive effects in order for the ICCC to approve the proposed merger/acquisition.

Clearance is an adjudication process. Therefore, the onus is on the applicant to provide the ICCC with relevant information clarifying where the areas of concern are and how these aspects are not likely to have the effect of substantially lessening competition.

When a Clearance is received and registered, the ICCC must give a decision within 20 days after the date of registration. This period may be extended if further information is requested from the applicant; and or there has been mutual consent between the ICCC and the applicant for an extension.

The ICCC’s previous decisions and progress of current Clearance applications can be found on the Public Register.

The ICCC can also grant Authorization for a business acquisition that would otherwise have the effect of substantially lessening competition. The test for Authorization is that the proposed acquisition would result in net public benefit. The application for Authorization is only upon a direction from the ICCC to do so.

Authorization of business acquisition is a two-stage process. The ICCC is first required to assess the competition effects of the proposed acquisitions in the relevant market(s), to determine whether the proposed acquisition would substantially lessen competition in the relevant market. If the ICCC is satisfied that there would not be such an adverse competitive effect, the ICCC must give a Clearance. If the ICCC is not satisfied, then it must determine whether the acquisition will result or will be likely to result, in such a benefit to the public that it should be permitted.

A formal approval by the ICCC would provide immunity to parties to an acquisition to proceed with the proposed acquisition, without risking a contravention of the ICCC Act.

Like the Clearance, the onus is on the applicant to satisfy the ICCC that Authorization should be granted.

Where it considers necessary and appropriate, the ICCC may also grant Authorization subject to certain conditions.

The ICCC must give a decision on an Authorization application within 72 days after the date of registration. Like the Clearance process, this period may be extended if further information is requested from the applicant; and or if there has been mutual consent between the ICCC and the applicant for an extension.

The ICCC’s previous decisions and progress of current Authorization applications can be found on the Public Register.

As Clearance and Authorization are public and transparent processes, the ICCC may hold a pre-decision Conference. When the ICCC determines to hold a Conference, a draft determination is issued before the Conference. This is the time the applicant and other key stakeholders have the opportunity to provide comments on the draft decision of the ICCC.

All such comments are taken into consideration to come up with the final decision. The final decision may not necessarily be the same as the draft decision.

Businesses are encouraged to approach the ICCC for guidance, on an informal basis, as soon as there is a real likelihood that a proposed acquisition may proceed, and this should be done well before the completion of an acquisition.

The ICCC Act prohibits behavior that restricts trade or substantially lessens competition in the market. It is illegal to engage in business conduct, behavior, or practices that have, or, are likely to have the effect of substantially lessening competition in a market. The ICCC Act refers to the prohibitions as Market Conduct Rules (MCR).

There is no precise definition of a substantial lessening of competition (SLC). In practice, it will depend on the circumstances in the market. It includes a reference that defines the consequences or unacceptable competitive behavior prohibited by the ICCC Act.

There are also a range of other exceptions under the ICCC Act.  Included in these exceptions are, for example, an exception for acts or things specifically authorized by other legislation; intellectual property agreements; and employment agreements.

Cartel is a form of anti-competitive behavior where competing businesses collude to coordinate their actions in a way that restricts competition between themselves in the market. Cartels typically involve agreements between competitors to fix prices, allocate markets, limit production or supply, and rig bids. Such collusive practices harm consumers by creating an artificial environment where prices are higher, choices are limited, and fair competition is stifled.

Certain business behaviors that can raise cartel concerns are as follows:

The prohibition of this anti-competitive market behavior may apply in a case where a person or business has a substantial degree of power in a market. They are prohibited from taking advantage of that power for anti-competitive purposes which are to restrict the entry of a competitor, to prevent or deter someone from engaging in competitive conduct, or to eliminate a competitor- in that market or another market. Examples of abuse of market power conduct may include but are not limited to margin or price squeeze, refusal to deal, predatory conduct, and discriminatory conduct, amongst others. 

Resale price maintenance (RPM) is the practice of a supplier requiring its resellers not to sell its products below a certain price as set by the supplier. Thus, a manufacturer or supplier cannot insist that its retailers do not sell the manufacturer’s products for less than a certain price. RPM would also apply where a manufacturer threatens to withdraw supply to a reseller who was discounting the manufacturer’s products while others were not.

In the context of MCR, exemptions refer to specific situations or categories of conduct that are excluded from the application of certain regulatory requirements or prohibitions. These exemptions are typically granted to recognize that certain activities or participants may not pose significant risks to the market or consumers, or that applying the rules in certain circumstances could be overly burdensome or counterproductive.

Exemptions for market conduct rules include:

Part VI of the ICCC Act empowers the ICCC to grant authorizations for certain business practices and arrangements based on public benefit grounds. Otherwise, such practices and arrangements are considered anti-competitive.

The purpose of authorizing restrictive trade practices under Section 76 is to exempt proposed conduct that would otherwise breach the MCR. These exemptions are granted when the conduct is deemed to generate sufficient public benefits despite potentially having some anti-competitive effects.

The Authorization here does not apply to price fixing and taking advantage of substantial market power.

Before filing an Authorization application, businesses are strongly encouraged to seek guidance from the ICCC on an informal basis. This should be done as soon as there is a genuine possibility that a potential anti-competitive arrangement would be entered into; well in advance of the completion of the acquisition.

By obtaining formal approval from the ICCC, parties involved in an arrangement can proceed with their plans confidently, without risking a contravention of the ICCC Act. This is legal and certainly allows businesses to operate within the bounds of the law while enjoying the benefits of the authorized arrangement.

Whilst there is no timeframe for a determination of such an application, the ICCC ensures to expedite the assessment and determination.

Please refer to the Public Register to access information on previous decisions and applications currently progressing.