COMESA (Common Market for Eastern and Southern Africa)

The merger control regime in COMESA is governed by the COMESA Competition and Consumer Protection Regulations, 2025 (the “Regulations”) and the COMESA Competition and Consumer Protection Rules, 2025 (as amended) (the “Rules”).

The regime is mandatory and suspensory.

The Regulations and Rules are enforced by the COMESA Competition and Consumer Commission (the CCCC or the “Commission”), which is established under Regulation 8 of the Regulations and is based in Lilongwe, Malawi.

The following bodies within the CCCC are responsible for the enforcement of the Regulations and Rules:

• the Secretariat (together with the Mergers & Acquisition division of the CCCC) is responsible for investigations and makes recommendations to the Panel Responsible for Determination;
• the Panel Responsible for Determination (the “Panel”) which has the power to make final determinations on competition and consumer protection matters or any related matters brought before it. In particular, the Panel may, inter alia: consider and make determinations on mergers; based on the findings of an investigation or an assessment, make a determination that there has been a breach of the Regulations; and impose appropriate fines and penalties for breach of the Regulations. Decisions rendered by the Panel are binding on undertakings and Member States. The Panel is composed of three (minimum) to five (maximum) Commissioners appointed from amongst the Board of Commissioners;
• the Board of Commissioners is the supreme policy-making body of the CCCC responsible for ensuring the CCCC adheres to the principles of corporate governance; and
• the COMESA Court of Justice hears appeals against decisions of the Panel.

The merger control regime is economy-wide, having general application to all sectors. In addition, in terms of rule 23(2) of the Rules, a merger in the digital market shall be notifiable if it meets the transaction value of COM$ 250 million. 

COMESA is itself a supranational bloc.

Yes, the CCCC has entered into a multi-party memorandum of understanding (MOU) with other regional (supranational) regulators that operate in the African continent. In addition, the CCCC regularly engages with national-level antitrust regulators within COMESA Member States, as well as with regulators outside of COMESA with whom the CCCC has signed MOUs.

The Rules and Regulations were subject to comprehensive amendment in 2025. These are expected to be supported by the publication of subordinate practice notes and guidelines during the course of 2026.

Regulation 41(4) of the Regulations provides that control may result from rights, contracts or any other means which, either separately or in combination, confer the possibility of exercising decisive influence on the undertaking or asset concerned, including:

• determination or ability to influence the voting of the majority of the votes that may be cast at a general meeting of the undertaking;
• the ability to appoint or veto the appointment of the majority of directors and senior management of the undertaking;
• the ability to determine or veto the determination of the strategic commercial policy of the undertaking, or strategic use of the asset concerned; or
• the ability to influence the policy of the undertaking in a manner comparable to a person who, in ordinary commercial practice, can exercise an element of control referred to in the first and third points above.

The Merger Guidelines provide that the CCCC will deem a person or undertaking to exercise control if:

• the person or undertaking beneficially owns more than 50% of the issued share capital of the undertaking;
• is entitled to cast a majority of the votes that may be cast at a general meeting or has the ability to control the voting of a majority of votes that may be cast (either directly or indirectly);
• is able to appoint or veto the appointment of a majority of the directors of the undertaking;
• is a holding company, and the undertaking is a subsidiary of the holding company; or
• has the ability to materially influence the policy of the undertaking in a manner comparable to a person who, in ordinary commercial practice can exercise an element of control referred to in the points above.

Minority shareholdings can, therefore, be caught by the regime.

Please see the narrative under Questions 2.3 and 2.4, below, in so far as a “lasting basis” is concerned.

As indicated above, acquisitions of minority shareholdings (when coupled to control-conferring rights) can give rise to a notification obligation.

In addition, a merger is defined in terms of Regulation 41 of the Regulations, as the direct or indirect acquisition or establishment of control, or change in control held, on a lasting basis, by one or more undertakings in the whole or part of one or more undertakings whether that control is achieved as a result of:

• the purchase of shares or assets of a competitor, supplier, customer or other undertaking;
• the lease of assets of a competitor, supplier, customer or other undertakings;
• the amalgamation or combination with a competitor, supplier, customer or other undertaking;
• the creation of a joint venture performing on a lasting basis all the functions of an autonomous economic entity; or
• any means other than those specified above.

In terms of Regulation 41(3) of the Regulations, a merger shall not be deemed to arise where control is acquired by an office holder according to the law of a Member State solely for managing proceedings relating to liquidation, winding up, insolvency, cessation of payment, composition or analogous proceedings.

Advice should be sought from an expert advisor in instances where an alternative transaction structure is under consideration (i.e. one concerning an “acqui-hire” or the like), and on a case-by-case basis.

The definition of a merger provided for in Regulation 41 of the Regulations includes the creation of a joint venture performing on a lasting basis all the functions of an autonomous economic entity.

In terms of Regulation 41(6) of the Regulations, a proposed joint venture shall be notifiable to the CCCC if all of the following conditions are met:

• the joint venture is intended to operate in two or more Member States;
• at least one of the parent undertakings to the joint venture operates in two or more Member States; and
• the combined annual turnover or value of assets, whichever is higher, in the Common Market of all parties to the joint venture meets or exceeds the prescribed threshold.

Paragraph 19 of the Merger Control Practice Note clarifies that it is not all joint ventures that are captured by the Regulations but only those that would perform on a lasting basis all the functions of an autonomous economic entity and the CCCC shall consider long duration and lasting basis to be a period of three years and above.

As regards a sequence of transactions amongst common parties, in terms of rule 21(5) of the Rules, two or more transactions taking place within a two-year period between the same persons/undertakings shall be treated as one and the same merger, arising on the date of the last transaction.

Separately, in relation to the procedural treatment of a set of interrelated transactions between different parties, the CCCC can be expected to treat the assessment of same in light of international best practice. This said, case-by-case treatment may vary and so advice from an appropriate expert advisor is recommended in such a transaction scenario.

In terms of Regulation 41(5) of the Regulations, a proposed merger shall be notifiable to the CCCC if the following conditions are met:

• at least one of the parties to the merger operates in two or more Member States;
• the target undertaking has operations in one or more Member States;
• the combined annual turnover or value of assets, whichever is higher, in the Common Market of all parties to the merger meets or exceeds the applicable prescribed threshold; and
• the annual turnover or value of assets in the Common Market, whichever is higher, of each of at least one acquiring party and one target party meets or exceeds the prescribed threshold unless each of the parties to the merger achieves or holds at least two-thirds of its annual turnover or value of assets in the Common Market within one and the same Member State.

Further, in terms of Regulation 41(6) of the Regulations, a proposed joint venture shall be notifiable to the CCCC if all of the following conditions are met:

• the joint venture is intended to operate in two or more Member States;
• at least one of the parent undertakings to the joint venture operates in two or more Member States; and
• the combined annual turnover or value of assets, whichever is higher, in the Common Market of all parties to the joint venture meets or exceeds the prescribed threshold.

Rule 23(1) of the Rules sets out the monetary thresholds and provides that a merger shall be notifiable to the CCCC if:

• the combined annual turnover or combined value of assets, whichever is higher, in the Common Market of all parties to a merger equals or exceeds COM$ 60 million; and
• the annual turnover or value of assets, whichever is higher, in the Common Market of each of at least two of the parties to a merger equals or exceeds COM$ 10 million, unless each of the parties to a merger achieves at least two-thirds of its aggregate turnover or assets in the Common Market within one and the same Member State.

Paragraph 19 of the Merger Control Practice Note clarifies that the that the monetary thresholds set out above apply to joint ventures (i.e. there are not different monetary thresholds for joint ventures). If the joint venture is newly created, only the turnover of the parent companies shall be considered.

Finally, Regulation 41(6) of the Regulations provides that parties to a proposed merger in a digital market, including platforms, shall notify the CCCC of their merger where:

• at least one of the parties to the merger has operations in two or more Member States; and
• the merger meets the prescribed transaction value.

In terms of rule 23(2) of the Rules, a merger in the digital market shall be notifiable if it meets the transaction value of COM$ 250 million.

Rule 24 of the Rules sets out the method of calculation of assets and turnover for purposes of the merger notification thresholds and filing fees payable. Please refer to rule 24 of the Rules for further information in this regard.

Refer to the comment and citation immediately above.

For COMESA merger notifications, parties must use the official COMESA exchange rates published by the Bank of Uganda.

Not applicable.

No overlap transactions; overlap transactions and foreign-to-foreign transactions are all subject to the same notification thresholds and tests. If these thresholds are satisfied, then a filing obligation is created, regardless of the existence or non-existence of any overlap. The Regulations apply to “all economic activities conducted by an undertaking within or having or likely to have an effect in two or more Member States within the Common Market or a substantial part of it”. Accordingly, foreign-to-foreign mergers are notifiable where the thresholds are met and there is an effect in two or more Member States.

In terms of Regulation 41(3) of the Regulations, a merger shall not be deemed to arise where control is acquired by an office holder according to the law of a Member State solely for managing proceedings relating to liquidation, winding up, insolvency, cessation of payment, composition or analogous proceedings.

Further, the CCCC regards an internal restructuring within a group of undertakings (where one undertaking already controls the other undertaking or the undertakings concerned are ultimately controlled by the same undertaking) as not constituting an acquisition or establishment of a “controlling interest” and so as not being a “merger” for the purposes of the Regulations.

Yes, and this power derives from the jurisdiction of the CCCC.

In terms of Regulation 41(10) of the Regulations, the CCCC may require parties to a non-notifiable merger to notify the merger to the CCCC, in a form and manner specified by the CCCC, if it appears to the CCCC that the merger is likely to substantially lessen competition in the Common Market, or a substantial part of it, provided that the merger has not been implemented.

No.

There is no formal provision in the COMESA framework catering for such an approach. Advice should be sought in such a situation on a case-by-case basis, given that undertaking this course of action impugns a number of jurisdictional considerations both at COMESA level and in so far as the subordinate Member States are concerned.

Where jurisdictional thresholds are satisfied, notification is mandatory and cannot be waived.

Yes. the regime is now inherently suspensory and an embargo on implementation attaches to all transactions that fall within the scope of the COMESA merger control regime.

The CCCC does indeed have the power to waive the standstill obligation in so far as COMESA is concerned. However, this is not a frequently discharged power, and advice should be taken from an expert advisor before expectations of securing such a dispensation are created.

In terms of rule 21(4) of the Rules, the merger notification shall be completed jointly by the parties to the merger or in the case of the acquisition of a controlling interest in one undertaking by another, the acquiring undertaking shall complete the notification. In the case of a public bid, the bidder shall complete the notification. Each party completing the notification is responsible for the accuracy of the information it provides.

In terms of rule 22 of the Rules, the filing fee payable for a merger notification is 0.1% of the merging parties’ combined annual turnover or combined assets (whichever is higher) in the Common Market, subject to a cap of COM$ 300,000.

Notification of a merger in the digital market shall be accompanied by a fee calculated at 0.05% of the transaction value provided that the fee does not exceed COM$ 300,000.

USD is equivalent to COM$ in this context and, furthermore, the obligation to pay for a filing fee follows the notification-making responsibilities provided for in the preceding question.

Notifications may be made at any stage prior to implementation of a transaction (with that action then creating the standstill obligation) provided that the parties are capable of submitting at least a materially settled term sheet or draft transaction agreement.

A filing must be submitted prior to implementation of a transaction.

Rule 21(8) provides that the parties shall provide, inter alia, the following information:

• the parties’ annual turnover in the Common Market;
• activities in the Common Market including, where applicable, number of active users, subscribers, type of data collection and processing;
• a summary of the merger, including its nature and rationale, and
• a list of the Member States concerned by the merger.

As mentioned above, a filing must also be made on the basis that it includes a materially settled transaction agreement or term sheet, as well as other compulsory documentation for submission.

The statutory form, as hosted by the CCCC, can be found at: www.comesacompetition.org/wp-content/uploads/2026/03/Form-1-Notice-of-Merger.pdf.

Supporting documentation can be submitted in either original or certified copy of original format. Advice should be sought from an expert advisor in circumstances where supporting documents are not available in English.

Yes. In terms of Appendix A to the Schedule of Fees Practice Note, merging parties may request an expedited merger review (i.e. we point out that the actual notification itself is not simplified). An expedited merger review shall only be undertaken where the CCCC believes that there are compelling reasons for doing so and the transaction has no prospects of raising competition concerns.

Such engagements are not formally required; however, they are encouraged, particularly in circumstances where there is uncertainty regarding the approach to be taken regarding a specific notification.

In terms of paragraph 11 of the Merger Control Practice Note, when the merger is duly filed, the computation of 120 days shall commence on the day following the date of notification. A merger is only considered duly filed after paying the merger notification fees and submitting the merger information requested in the Notice of Merger Form. This is no formal, external phase delineation with this framework.

Regulation 44(3) of the Regulations provides that where the CCCC sends a request for information necessary for its examination of the merger, and the parties do not respond within the time limits, the CCCC shall stop the clock until the information is provided.

The COMESA merger control framework provides for time periods in calendar days. Accordingly, official holidays and non-working days have no bearing on the calculation of deadlines.

Provided that the filing is prepared timeously and that the requisite information/documentation is readily available for drafting purposes, parties should reasonably expect a period of five calendar months from signing (with that being the date for commencement of filing preparation) until clearance. Typically, the CCCC will use the bulk of its 120-calendar-day review period to conduct its investigation.

There are no special rules in relation to public bids in so far as the COMESA merger control framework is concerned as it relates to timing. Procedurally, the only point of emphasis for public bids concerns the role of the notifier, which in these circumstances will be the bidder rather than the merging parties jointly.

In terms of rule 17 of the Rules, a party that reasonably believes that it is affected by investigations may apply to the CCCC to be joined as a party in the proceedings. Such application shall be made within the time period stipulated in the CCCC’s publication of the investigation. The application may be rejected if it: may unduly protract the investigation, is unrelated to the investigation in question, or is made when the investigation is being concluded. Where the CCCC grants the application, the third party shall be afforded the same rights as the respondent party.

Post-filing requests for internal documents to be provided by the merging parties are common and can be expected, particularly if there is a limited degree of documentary disclosure at the stage of filing submission. Such requests are typically formal and issued by way of letter. In circumstances where there is non-compliance, the CCCC enjoys compulsion powers; however, the discharge of such powers in a merger control context is typically limited to instances where parties are repeatedly non-forthcoming in response to informal requests.

COMESA’s merger control regime caters for the confidential treatment of information and documents submitted to the CCCC during the merger control process. This is done by way of completion of a formal confidentiality claim. The CCCC will engage with the parties regarding the external sharing of any such information, prior to that being done.

In horizontal mergers, the CCCC will typically consider whether the proposed transaction will result in any unilateral effects (i.e. whether upon implementation of the proposed merger the merged entity will have the ability to increase prices or otherwise unilaterally exercise market power in the absence of competitive constraints) or coordinated effects (i.e. whether the proposed merger will increase the ability of the merged entity to coordinate its behaviour with the behaviour of their competitors). Further, the CCCC will consider whether mergers are likely to result in information sharing between competitors as a result of firms holding common interests or ownership in competing firms.

In the context of vertical mergers, the primary theory of harm is whether the merger is likely to result in input or customer foreclosure (i.e. the foreclosure of any competitors of the merging parties in any level of the supply chain) and whether this is likely to result in the substantial lessening or prevention of competition. Foreclosure is typically of concern where one or both of the parties have high market shares in their respective markets or is a large customer or supplier of third parties within the supply chain, such that the vertical integration of the merging parties would result in competitors being foreclosed from the relevant market.

In conglomerate mergers (i.e. mergers involving firms in different (but related) product markets and with no vertical relationship) the competition authorities will consider whether the merger may give rise to any conglomerate or portfolio effects, including whether the merged entity could foreclose competitors through tying and bundling products and other exclusive arrangements or otherwise give the merged entity market power.

If the CCCC concludes that the proposed transaction is likely to substantially lessen competition in the relevant market(s), the CCCC must consider whether or not the merger may be justified on technological efficiency, or any pro-competitive gain, which shall outweigh or offset the substantial lessening of competition and which would likely not be obtained if the merger is prevented.

At any time during a merger investigation, the CCCC may informally request additional information from a party to a merger.

Typically, the CCCC will reach out to the attorneys representing the merging parties via telephone or email requesting additional information or documentation in the body of the email or in an attached letter (request for information). The CCCC is open to setting up meetings to discuss any concerns raised. In this sense, it is exceedingly unlikely that merging parties will not be afforded a comprehensive right of reply (including in so far as any proposed remedies are concerned).

The CCCC will typically propose remedies once it has determined that a transaction raises a need for such a measure to be taken. This can occur at any stage during the 120-calendar-day review period but typically arises from the halfway point onward. Merging parties are also made privy to such a conclusion being reached and invited, through their advisors, to engage on the subject matter. Whilst the CCCC and, indeed, the Panel each retain the right to unilaterally impose conditions on a transaction, in reality this is seldom seen and there is typically extensive engagement with advisors prior to condition imposition.

The CCCC typically follows best practice regarding remedy design and formulation. There is nothing inherently COMESA-specific in this regard, and ordinary principles regarding remedy negotiation between the regulator and the advisors are typically observed in the COMESA context, prior to any definitive imposition of a remedy.

This is dependent on the duration and nature of the remedies concerned. Advice should be sought from an appropriate advisor if specific concerns are held in this regard. It is likely the case that completion can occur during the period in which remedies have implementation obligations attached to them over an extended period of time. Completion will not ordinarily be halted by the imposition of remedies, unless such remedies are immediate and not of an enduring nature.

All advisors who are formally appointed in connection with a merger notification to COMESA typically receive a copy of the CCCC’s decision in a matter. This will then be provided onward to the merging parties, primarily for purposes of assessing the degree of confidential information included (or not included) in the decision. Thereafter, and once a landing is reached on confidentiality, a decision will then be published on the CCCC’s website sometime later.

Clearance decisions typically come into immediate effect, on the basis of the date reflected on the clearance decision itself.

This position is ultimately influenced by the degree to which ancillary restraints are mentioned up-front in the merger notification. The CCCC, upon becoming aware of such features, can be expected to thoroughly interrogate them as an aspect of its investigation process. Individual advice should be sought on this consideration from an appropriate advisor.

Yes. Under Regulation 76 of the Regulations, a party aggrieved by the decision of the CCCC may refer the matter to the COMESA Court of Justice within 45 days of the decision, failing which the decision of the CCCC shall be final and binding.

In terms of Regulation 41(12) of the Regulations, the CCCC may impose a penalty of up to 10% of either or both of the merging parties’ annual turnover in the Common Market (as reflected in the audited accounts of any party concerned) for contraventions of the provisions of Chapter 4 of the Regulations (including gun-jumping). This is typically at the higher end of what is encountered in practice; however, it bears mention that the CCCC is increasingly emphasising its enforcement activities as an institutional priority area. At present, no criminal sanctions have ever been levied on a corporate or natural person, by the CCCC in relation to merger control contraventions.

In circumstances where a notification has not been made, but where it was legally required, the CCCC will typically request that this be submitted. It will then evaluate that merger and run the sanction procedure alongside that process, or potentially post-decision in relation to the filing.

See the item above.

Notifying parties who supply misleading or materially incorrect information are liable to fines of up to 10% of the annual turnover of the concerned undertaking(s) in the Common Market (Regulation 48(10) of the Regulations). Regulation 77 of the Regulations also provides that the CCCC may impose a fine of up to a maximum of 10% of the annual turnover of each of the undertakings or association of undertakings concerned in the Common Market where the undertakings, inter alia, supply incomplete information, materially incorrect information or misleading information, or fail to supply information within the time limit specified by the CCCC.

In addition, the CCCC may revoke its decision to approve the notified merger where the parties to the merger submitted misleading or materially incorrect information in support of the merger (Regulation 48(8)(a) of the Regulations).