Presidential Decree no. 240/18 of 12 October (the "Regulation") was published recently and further develops the framework of Law no. 5/18 of 10 May - the Competition Law. The Regulation clarifies and put into effect certain rules and procedures in the context of competition law. In particular, they address the rules on restrictive practices, merger control and procedural rules.
In the context of restrictive practices, the Regulation clarifies the concept of dominant position and make it clear that such a position will exist when the market share is 50% or more. Additionally, if there are significant barriers to the entry of competitors, there may be a dominant position even if the market share is less than 50%. Holding a dominant position does not, in itself, amount to a violation. The restrictive practice will only exist if there is abusive behaviour by a dominant undertaking. Such behaviour occurs when the undertaking commits one of the acts listed for this purpose in the Competition Law.
When it comes to the control of merger control, the Regulation has implemented some important provisions left blank by the Competition Law, in particular, as regards the thresholds for notification. Operations that meet any of the following conditions are subject to prior notification to the Competition Authority:
The operation leads to or reinforces a market share of 50% more; or The operation leads to or reinforces a market share of 30% or more, provided that, in the last financial year, the turnover achieved individually in Angola by at least two of the undertakings participating in the operation exceeds 450 million kwanzas; or In the last year, the undertakings involved in the transaction have achieved a turnover exceeding 3.5 billion kwanzas in Angola. In addition, the Regulation addresses the splitting up of operations, albeit in a somewhat unclear manner. Two or more operations carried out within a period of 5 years between the same entities, even if not individually subject to prior notification, are subject to the duty of prior notification if they cumulatively exceed the limits identified above. We believe that the wording is unclear, but it is expected that the Competition Authority will interpret and apply the rule in this way.
Concentration operations subject to the prior notification rules must be communicated to the Competition Authority using the form created for this purpose, in a format to be approved by that body.