THE CHALLENGES TO THE ENFORCEMENT OF COMESA COMPETITION REGULATIONS IN ETHIOPIA: THE CASE OF MERGER CONTROL

Abstract

The effectiveness of international economic integration agreements depend on the willingness of the signing states to respect them and act accordingly, since they entail limitations on sovereignty of states and there is no global executive organ, which will implement them. The other factor can be the design of the agreement in which it considers and protects the national interest of the signing state. In order to identify the main causes of non-enforcement of COMESA merger regulations or conflict of jurisdictions over merger review in the region between the COMESA Competition Commission (CCC) and National Competition Authorities (NCA) of the member states specifically that of Ethiopia, different sources of data are consulted. The research mainly focused on analysis of legal documents like COMESA treaty, competition rule, competition regulation, merger assessment guidelines, Vienna convention on laws of treaty 1969, FDRE constitution, Proclamation No. 3/1995, Proclamation No 25/1988, Proclamation No. 1024/2017, Proclamation No. 813/2013, and Merger Directive No. 1/2016. In addition to this review of relevant literatures, which are related to the above legislations, are also conducted. Accordingly, the research is doctrinal legal research. Based on these data the study has found the reason for which Ethiopia hesitated to accept the jurisdiction of the CCC. These are the claim that international agreements to be enforceable in the country needs to pass through ratification process and the COMESA merger regulations are not ratified except that the treaty provides for their automatic enforcement; and the ambiguity of the provision Art 3 of the COMESA regulation which provides for the jurisdiction of the CCC as primary jurisdiction. This is not clear whether it says exclusive jurisdiction or some kind of jurisdiction, which reviews the case primarily and then another organ will involve. In addition to these, the design of the regulations in a ‘one size fits all’ approach in which it failed to accommodate the national interest of the country; absence of effective referral process; and absence of coordination and ‘one stop shop’ review system and the like are main challenges. Finally, this research recommends appropriate ways to overcome the challenges of double or multiple jurisdictions over merger review in COMESA region. These are strengthening the one-stop-shop review system and referral of the review to NCA when it is needed.