This presentation, by Mor Bakhoum, Affiliated Research Fellow, Max Planck Institute for Intellectual Property and Competition, was made during the discussion “Regional Competition Agreements: Benefits and Challenges”, held during the 17th OECD Global Forum on Competition on 29 November 2018. More documents and presentations on this topic can be found at oe.cd/rca.

1. Max Planck Institute for Innovation and Competition | Munich
Regional Competition Agreements
(RCAs) in Sub-Saharan Africa: Promises
and pitfalls
Dr. Mor Bakhoum, LL.M
Affiliated Research Fellow
Max Planck Institute for Innovation and Competition
Munich - Germany
OECD Global Forum on Competition - Paris 2018

2. Max Planck Institute for Innovation and Competition | Munich
Points to discuss…
1. Background: a brief overview of the RCAs in Sub-Saharan
Africa
2. Designing efficient enforcement Institutions: the challenges
3. Enforcement/Effectiveness : achievements and challenges
4. Regional Competition Agreements (RCAs) and the new
African Continental Free Trade Agreement (CFTA)
5. Concluding remarks

3. Max Planck Institute for Innovation and Competition | Munich
1. BACKGROUND
A multitude of Regional Competition Agreements (RCAs) in Sub-Saharan Africa
WAEMU, ECOWAS, CEMAC, COMESA, SADC, EAC
Source: https://www.researchgate.net/figure/The-Spaghetti-Bowl-Overlapping-Regional-
Integration-in-Africa_fig2_324606941.

4. Max Planck Institute for Innovation and Competition | Munich
1. BACKGROUND
A multitude of Regional Competition Agreements (RCAs) in Sub-Saharan Africa
 Scope, membership, design of institutions, enforcement powers,
relation national regional law, effectiveness etc… differ from RCA to RCA
 Commonality of main objective: RCAs as a necessary tool to police
anticompetitive practises (state initiated/private initiated) in free trade areas
 RCAs, a complement to Regional Trade Agreements (RTAs)
 Informal cooperation as a complement to RCAs : ACF – Foster
enforcement

5. Max Planck Institute for Innovation and Competition | Munich
1. BACKGROUND
Goals: Reorienting the goals of regional integration and RCAs
 Need of a better coordination between trade policies and regional
competition policies
 Regional Competition Policy and Protectionism -
 Regional Integration and RCAs: a stepping stone to global markets in Sub-
Saharan Africa
 Regional Competition Policies and the new African Continental Free
Trade Area (CFTA) - Competing or complementary objectives?

6. Max Planck Institute for Innovation and Competition | Munich
2. Designing efficient enforcement Institutions: the challenges
 Creation of a strong regional competition authority: limits of the
argument…
 Pooling limited resources: lack of resources at the regional level
 Articulation of regional and national competences: finding the
right balance between national enforcement and regional
enforcement
 Centralization, decentralization or a mixed approach?

7. Max Planck Institute for Innovation and Competition | Munich
2. Designing efficient enforcement Institutions: the challenges
Articulation of competing regional competition regulations: UEMOA/ECOWAS
 WAEMU- Centralized approach – ECOWAS – Decentralized approach
 Risks of horizontal conflict: between two regional competition authorities
– WAEMU Commission and ECOWAS regional competition Authority
(ERCA)
 Conflicting decisions for a same practise (cartel/abuse of dominance)
 Dual notification for mergers - Different standards for assessing a merger
 Need for coordination in enforcement
 Risks of vertical conflicts: Member States under contradictory obligations

8. Max Planck Institute for Innovation and Competition | Munich
3. Enforcement/Effectiveness : achievements and challenges
From conception (adoption) to operability: a long way…
 WAEMU: Regulations (2002)
 ECOWAS: Supplementary acts (2008)
 COMESA: Regulations (2004)
Operability takes time…
But effectiveness should be speeded up…

9. Max Planck Institute for Innovation and Competition | Munich
3. Enforcement/Effectiveness : achievements and challenges
Enforcement orientation: WAEMU and COMESA
 WAEMU: focus on cases regarding state aids and state complicit
anticompetitive practises (e.g. cases: Asky and Norms NS)
 Limited enforcement record on cartels and abuse of dominance
 Showcase trend of protectionism – Cases related to States’ violations
 COMESA: Focus on merger cases
 Limited enforcement record on cartels and abuse of dominance

10. Max Planck Institute for Innovation and Competition | Munich
4. Regional Competition Agreements (RCAs) and the new
African Continental Free Trade Agreement (CFTA)
Background
The African Continental Free Trade Agreement (CFTA) was signed in
Kigali in March 2018 by 44 of the 55 members of the African Union
The CFTA will bring together:
 54 African countries
 Combined population of more than one billion people
 Combined gross domestic product (GDP) of more than US $3.4
trillion

11. Max Planck Institute for Innovation and Competition | Munich
4. Regional Competition Agreements (RCAs) and the new
African Continental Free Trade Agreement (CFTA)
Main Objectives
 Creation of a single continental market for goods and services - free
movement of business persons and investments
 Expand intra African trade through better harmonization and coordination
of trade liberalization
 Deal with the challenges of multiple and overlapping memberships
 Expedite the regional and continental integration processes

12. Max Planck Institute for Innovation and Competition | Munich
4. Regional Competition Agreements (RCAs) and the new
African Continental Free Trade Agreement (CFTA)
Competition law in the continental trade agreement: a rendez-vous clause
 Phase II negotiation includes investment, Intellectual Property
and Competition law/policy
 A continental competition law/policy is closely linked to the
existent initiatives of RTAs and RCAs: need of a harmonization
of policies

13. Max Planck Institute for Innovation and Competition | Munich
4. Regional Competition Agreements (RCAs) and the new
African Continental Free Trade Agreement (CFTA)
Designing a continental competition policy: the issues
 Does one need a continental competition policy?
 Options regarding a continental competition authority? Powers?
 Guidelines on competition law for members states to implement in their
national/regional competition laws?
 Definition of the substantive rules: cartels, abuse of dominance, mergers
 Coordinating national, regional and continental competition policies

14. Max Planck Institute for Innovation and Competition | Munich
4. Regional Competition Agreements (RCAs) and the new
African Continental Free Trade Agreement (CFTA)
Designing a continental competition policy: the issues
 Result from the Phase I negotiations that a Secretariat in charge of the
implementation of the CFTA and a Dispute Settlement Body will be
created
 But it is still unclear what would be the role of those two institutions in
dealing with competition matters

15. Max Planck Institute for Innovation and Competition | Munich
5. Concluding remarks
 Need to harmonize and coordinate different RTAs and competing RCAs
 Need to foster enforcement – especially private restraints on competition
 Need to give enough resources and enforcement powers to the
regional competition authorities
 Need to coordinate the legislative process: existing RCAs and the
negotiations on competition law/policy in the CFTA