Acceso usuarios
Vellah Kedogo Kigwiru
Academic research is increasingly questioning whether the goals of competition law should extend beyond the tra-ditional focus on economic efficiency and consumer welfare to include non-economic issues such as social justice,democracy, environmental sustainability and equality. In this regard, the African experience is particularly valuablesince public interest considerations (PICs) are a feature of merger control regimes in many African countries. Afteran analysis of PICs in Africa, the paper zooms in on South Africa's extensive experience in the field, particularlyits legal test for determining when PICs are justified in merger assessment and offers recommendations that couldinform other countries. Drawing on the South Africa merger assessment, this paper recommends that PICs and thecompetition standard be analysed separately but in an interrelated manner, as they complement each other. Thelikely effect of the merger on specific public interests must be identified and considered only when it is substantialand linked to the merger. Additionally, a merger should be prohibited only if the proposed remedies seeking toaddress the negative effects on the specific PIC are inadequate, inappropriate, disproportionate or unenforceable.Importantly, when PICs collide, competition agencies should balance each public interest against the others, focus-ing on whether the likely effect is substantial or whether the remedies are inadequate. In sum, competition agenciesshould adopt public-interest merger guidelines that provide businesses with the necessary guidance on the legal testand procedures, enhancing legal certainty and attracting investment
