Namibia merger control (2019)
Produced in partnership with Norton Rose Fulbright South Africa

The following Competiton guidance note Produced in partnership with Norton Rose Fulbright South Africa provides comprehensive and up to date legal information covering:

  • Namibia merger control (2019)
  • 1. Have there been any recent developments regarding the Namibian merger control regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Namibia?
  • 2. Under Namibian merger control law, is the control test the same as the EU concept of ‘decisive influence’? If not, how does it differ and what is the position in relation to 'minority shareholdings'?
  • 3. Are joint ventures caught by the national merger control provisions (including non-structural, cooperative joint ventures)?
  • 4. What are the merger control thresholds and would a purely foreign-to-foreign transaction be caught (commenting on any ‘effects’ doctrine/policy if relevant)?
  • 5. Are there any specific issues parties should be aware of when compiling and calculating the relevant turnover for applying the jurisdictional thresholds?
  • 6. Where the jurisdictional thresholds are met, is notification mandatory and must closing be suspended pending clearance?
  • 7. Is there any discretion to review transactions that fall below the notification thresholds?
  • 8. Is it possible to close the deal globally prior to local clearance?
  • 9. Is there a deadline for filing a notifiable transaction and what is the timetable thereafter for review by the Namibian Competition Commission?
  • more

A conversation with Jason van Dijk, director at regional law firm Norton Rose Fulbright South Africa on key issues on merger control in Namibia.

NOTE–to see whether notification thresholds in Namibia and throughout the world are met, see Where to Notify.

1. Have there been any recent developments regarding the Namibian merger control regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Namibia?

The Namibian Competition Commission (the Commission) appointed external legal advisors to review the Competition Act and Rules and propose amendments in 2014 as the Commission had identified several aspects of the legislation which may require amendment.  These include clarifying the definition of an undertaking; defining dormant or shelf companies as an undertaking—including a definition of a non-trading undertaking and clarifying whether mergers with these entities are notifiable; including a definition for joint control; including a requirement for merging undertakings to provide their annual financial statements to the Commission; extending the application of consent agreements to unauthorised mergers and extending the powers of the Commission to investigate mergers and call for additional information from merging undertakings.

The Commission is in the process of finalising the draft Bill on the review of the Competition Act No.2 of 2003. This will be submitted to the Ministry of Industrialisation, Trade and SME Development later in 2018.

In March 2017, certain amendments to the Rules under the Competition Act were gazetted. Key amendments to the Rules include increases in merger filing fees and exemption fees, as well as the inclusion of a NAD 5,000 fee payable to the Commission for issuing a non-binding advisory opinion.