Enforcing the Competition Law in Namibia A Toolkit - cuts ccier

• issue a certificate of clearance stating that in its opinion, on the basis ofthe facts in its possession, the agreement, decision or concerted practiceor the category of agreements, decisions or concerted practices does notconstitute an infringement of the Part I or the Part II prohibition.The determination of application for exemption depends, pursuant to section28 of the Act, on whether the Commission is satisfied that there are exceptionaland compelling reasons of public policy why the particular restrictive practicesought to be excluded from the Part I or the Part II prohibition. In taking theabove-mentioned decision, the Commission must take into account the extentto which these practices (agreement, decision or concerted practice, or thecategory of agreements, decisions or concerted practices concerned)Ø contributes to or results in, orØ will be likely to contribute to or result in :• maintaining or promoting exports;• enabling small undertakings owned or controlled by historicallydisadvantaged persons, to become competitive;• improving, or preventing decline in, the production or distribution ofgoods or the provision of services;• promoting technical or economic progress or stability in any industrydesignated by the Minister, after consultation with the Ministerresponsible for that industry;• obtaining a benefit for the public which outweighs or would outweighthe lessening in competition that would result, or would be likely toresult, from the agreement, decision or concerted practice or thecategory of agreements, decisions or concerted practices.RESTRICTIVE BUSINESS PRACTICESThe important point is that the Namibian Act proclaims the RBPs listed in itsSection 23 to be prohibited, thus unlawful, unless the parties have previouslyobtained an exemption in accordance with the provisions of the Part III,Chapter III. This essentially means that the business entities may not proceedwith a transaction that literally violates the prohibitions even if the transactionis pro-competitive. If parties want to proceed in their transaction, they mustfirstly apply for the exemption, of which the Commission shall give notice inthe Gazette, and await the Commission’s decision after a due process.In a country with low competition awareness like Namibia, such provisionimposes unreasonable obligations of undertakings and adds unnecessary reviewworkload on the Competition Commission. The difficulties in implementationarise also from the fact that undertakings are required to undertake a complexlegal analysis of their “restrictive” practice in order to find out whether theiragreement is really restrictive or not and to apply for the exemption.Moreover, giving the notice of a received application in the Gazette couldhave huge practical consequences. Forcing companies to reveal their businessplans could remove much of the competitive desire to innovate. Moreoverthe delay could make it impossible to respond to a competitive challengefrom others.Enforcing the Competition Law in Namibia: A Toolkit 21