1. AEWG Panel BOS 4 CHALLENGES FACED AS A YOUNG COMPETITION AUTHORITY April 2015 Heinrich Mihe Gaomab II Secretary & CEO Namibian Competition Commission (NaCC)

2. Presentation Outline  Background  NaCC  The Namibian Competition Act  Preliminary Provisions  Chapter 3: Restrictive Business Practices  Chapter 4: Mergers  Offences and Penalties  Major Challenges  Economic structure  Provisions of the Act  Lack of CLP  Capacity constraint  Availability of Data  Way Forward

3. BACKGROUND 1/3  NaCC  The NaCC was established in terms of the Competition Act 2 of 2003.  Ensures enforcement of the Competition Act:  Investigate anti-competitive agreements and unilateral conducts  Assess and exemption applications  Analyse and approve mergers notifications  Provide advocacy  Conduct research and disseminate findings to policy makers, businesses and general public

4. BACKGROUND 2/3  The Namibian Competition Act -(Based on EU competition law)  Preliminary Provisions:  Enhance the promotion and safeguarding of competition in Namibia  Applies to all economic activities within Namibia or having an effect in Namibia  Chapter 3: Restrictive Business Practices  Part I: Restrictive Agreements, Practices and Decisions  Part II: Abuse of Dominance  Part III: Exemption  Chapter 4: Mergers

5. BACKGROUND 3/3  The Namibian Competition Act cont...  Offences and Penalties:  Hindering administration of the Act  Failure to comply with summons  Failure to comply with order of the Court  Other offences:  Interference  Providing false information  Disclosing confidential information (Commission staff/memebers)  Penalties:  Maximum of N$ 500,000 (USD42,000) or 10 year imprisonment or both for failure to comply with order of the Court  Maximum of N$ 50,000 (USD4,200) or 3 year imprisonment for or both disclosing confidential information  Maximum N$ 20,000 (USD1,700) or 1 year imprisonment or both for any other offence as per the Act

6. MAJOR CHALLENGES 1/5  Economic Structure:  Many state owned monopolies in the energy, transport, mobile and fixed telecommunications sectors.  Some are vertically integrated e.g. Telecommunications sector  Some sector regulators need to be capacitated to effectively deal with ‘ex-ante’ regulations  Some monopolies protected through Govt policies e.g. Electricity generation-NaCC looking into this sector

7. MAJOR CHALLENGES 2/5  Provisions of the Act:  No clear distinction between the treatment of horizontal and vertical agreements  No distinction between hardcore cartels and other softer horizontal agreements.  Mergers not empowered to summon for information

8. MAJOR CHALLENGES 3/5  Lack of CLP:  The NaCC does not have in place a Corporate Leniency Policy  Have started with drafting of the CLP  Experience delays at Attorney General office to legal opinion  With no CLP in place, it makes it difficult to detect cartels  So far only one cartel case has been investigated by the NaCC

9. MAJOR CHALLENGES 4/5  Capacity Constraint:  Competition relatively new in Namibia  Competition Law courses only recently introduced in high learning institutions  Staff turnover within the NaCC due to better opportunities outside  Relatively new staff members especially in the RBP Division with an average experience of 1 year and 6 months

10. MAJOR CHALLENGES 5/5  Availability of Data:  Because of lack of summoning powers in merger cases, availability of data is an issue  Availability of data is a challenge in merger cases to conduct economic tests such as the SSNIP  Availability of data is also an issue to the NaCC’s Economic and Sector Research Division

11. WAY FORWARD 1/2  As per the Act provides on regular intervals policy advise to Govt of Rep. of Namibia  The NaCC is at the final stages of review the Competition Act which will address challenges with regards to the provisions of the Act  The NaCC will develop a staff retention strategy  Enhance capacity building with special focus on in-house trainings  Develop a regularly updated information database

12. WAY FORWARD 2/2  Accelerate the development of the CLP  Improve coordination with sector regulators  NaCC will continue to develop and publish various guidelines with regards to mergers and enforcement  Improve the NaCC’s organizational structure

13. THANK YOU