Nexus between Competition Policy Enforcement and Regional and Continental Integration: A Case of Cross-Border Cartel

Abstract

Competition law and policy enforcement is increasingly becoming transnational, demanding for enhanced cooperation among competition agencies. This paper examines the adequacy of cooperation between the COMESA Competition Commission (CCC) and the Competition Authority of Kenya (CAK) in the Kansai-Plascon Paints and Sadolin Paints merger analysis and the Kenyan Paint sector cartel case. It further analyses whether the merger generated a conducive market for cross-border cartel conduct in the sector. The paper adopts a case study approach in analyzing the interconnection between the merger and the cartel conduct in the Kenyan paint sector. The findings indicate that there was adequate cooperation between CCC and CAK at the point of evaluating the merger. Nonetheless, there was no explicit formal cooperation during the cartel case even though the cartel parties had cross-border business operations. Additionally, the merger did not create conducive market environment for the cartel conduct in the sector. The paper recommends that African competition agencies explore and appreciate the importance of cooperation in cross-border cartel investigations. The competition agencies need to appreciate the significance of better cooperation, particularly on procedural and substantive matters. Further, competition agencies should hold more cross-border cartel-specific fora. Competition agencies need to re-evaluate the adequacy of their activities towards handling cross-border cartels, while being cognizant of double jeopardy. Lastly, positive comity should be embraced by continental, regional, and national competition agencies.