The COMESA Competition and Consumer Protection Regulations and the COMESA Competition and Consumer Protection Rules govern the merger control regime in COMESA. The regime is mandatory and suspensory, enforced by the COMESA Competition and Consumer Commission (the CCCC or the “Commission”), which is based in Lilongwe, Malawi.
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. The CCCC has entered into a multi-party memorandum of understanding (MOU) with other regional regulators that operate in the African continent.
The Rules and Regulations were subject to full 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: minority shareholdings can, therefore, be caught by the regime.
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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: this definition is key for understanding the scope of the merger control regime.
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, which is an important aspect of the regime.
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.
Rule 23(1) of the Rules sets out the monetary thresholds and provides that a merger shall be notifiable to the CCCC if: the transaction value exceeds COM$ 250 million, or the turnover of the undertakings concerned exceeds the thresholds set out in the Rules.
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.
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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, and they will assess the potential impact on competition.
Where jurisdictional thresholds are satisfied, notification is mandatory and cannot be waived, and the regime is now inherently suspensory, meaning that implementation of the merger must be delayed until clearance is obtained, and it has the power to affect the outcome of a merger.
The CCCC does indeed have the power to waive the standstill obligation in so far as COMESA is concerned, but 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, as they can provide guidance on the process.
They will review each case on its merits, considering factors such as the potential impact on competition and the complexity of the transaction, and it is a complex process that requires careful consideration.