RFP : CCC/RFP/7/3/2022
I. BACKGROUND
- The COMESA Competition Commission (“the Commission”) is a regional body corporate established under Article 6 of the COMESA Competition Regulations 2004 (“the Regulations”) promulgated under Article 55 of the Treaty Establishing the Common Market for Eastern and Southern Africa (“COMESA”). The Commission has the legal capacity required for the performance of its functions under the Regulations in the territory of each COMESA Member State.
- The Commission’s core mandate is to promote and encourage competition by preventing restrictive business practices and other restrictions that deter the efficient operation of markets, thereby enhancing the welfare of the consumers in the Common Market, and to protect consumers against offensive conduct by market actors. The Regulations apply to all economic activities whether conducted by private or public persons within or having an effect within the Common Market. Such conduct includes anti-competitive business practices, agreements, mergers & acquisitions, and consumer protection violations which have an appreciable effect on trade between Member States and which restrict competition in the Common Market. The Regulations also specifically prohibit all agreements between undertakings, decisions by associations of undertakings and concerted practices as incompatible with the Common Market in so far as they may affect trade between Member States and have as their object or effect the prevention, restriction and distortion of competition within the Common Market.
- The Commission’s mandate as provided under Article 7 of the Regulations amongst others include:
3.1. Help Member States promote national competition laws and institutions, with the objective of the harmonisation of those national laws with the regional Regulations to achieve uniformity of interpretation and application of competition law and policy within the Common Market;
3.2. Co-operate with competition authorities in Member States;
3.3. Co-operate and assist Member States in the implementation of its decisions; and
3.4. Provide support to Member States in promoting and protecting consumer welfare.
- The Republic of Djibouti is one of the 21 COMESA Member States and adopted a law on competition, fraud repression and consumer protection in 2008 and further incorporated it into the legal corpus of the Djibouti Commercial Code of 2012. This law needs to be updated and the Government of the Republic of Djibouti intends to modernise and revise the competition and consumer protection law at national level and draft a new national competition legislation which is aligned to and in harmony with the COMESA Competition Law.
- As a COMESA Member State, Djibouti appreciates that the main objective for the regulation of competition and consumer protection by public authorities is to promote and ensure competitive markets at national level and protect consumers in the Common Market in accordance with Article 55 of the COMESA Treaty. Member States have the obligation to take necessary measures to establish a Common Market based on the four fundamental principles namely: the free movement of goods, the free movement of persons, the free movement of services and the free movement of capital. However, to achieve sustained and effective economic integration, there should be a movement towards the harmonisation of legal rules. It is within this framework that the Djibouti Ministry of Trade (here from referred as “the Ministry”) initiated the study on review of the national competition and consumer law.
- Djibouti also noted that the enforcement of national competition and consumer protection laws must first be assessed so that concrete measures can be taken for Djibouti to better enjoy the advantages of its membership in the various free trade areas and to encourage appropriate reforms. Recently, with the formal entry into force of the AFCFTA, Djibouti as well as other Members States of COMESA will face a new set of challenges. In fact, the Republic of Djibouti has launched the largest international free zone in Africa in order to attract regional investment flows and confirm its role as a trading and distribution hub.
- Premised on the foregoing, the Commission and Djibouti Ministry of Commerce and Tourism, (here from referred as the Ministry) is seeking to engage an International Consultant to assist Djibouti in reviewing the competition and consumer protection law and harmonizing the law with the COMESA Competition Regulations. The International Consultant is expected to work with a National Consultant to be also engaged by the Commission.
II. OBJECTIVES OF CONSULTANCY SERVICES
- The main objective of the Consultancy service is to study and analyse all the legal provisions on competition and consumer protection that currently exist at national level. This study is expected to help the Djibouti Ministry of Trade to develop national competition and consumer protection legal framework and further harmonise it with the COMESA Competition Regulations. The best approach in this harmonization process is to first come up with a coherent national competition and consumer protection policy to guide in building a broad framework of consensus in which Government responds to anticompetitive challenges in the marketplace. The national competition and consumer protection policy framework will be expected to inform the needs for the amendment of the existing legislation on which basis the harmonization process with the COMESA Competition Regulations will be done. This will also ensure that firms operating in various sectors of the economy comply with and adhere to the Competition and consumer protection Policy and regulatory requirements. Further, the study is expected to have recommendations on the appropriate structure for the national competition and consumer protection authority to be established to enforce the competition and consumer protection law.
III. SCOPE OF THE CONSULTANCY SERVICES
- To fulfil the purpose and objectives of the Consultancy Services, the International Consultant in liaison with the National Consultant to be engaged, will have to:
9.1. Hold consultative meeting(s) (whether in-person or virtually) with the stakeholders and, where deemed relevant, with the Commission and the Ministry and specified stakeholders in order to gather their preliminary views on the national competition and consumer protection policy formulation and law review process;
9.2. Develop a draft national policy to promote competition and consumer protection;
9.3. Review the current competition legislation against the draft competition and consumer protection policy and recommend the necessary amendments to ensure that the new policy is translated into the appropriate competition legislation;
9.4. Harmonise and modernise the legal provisions on competition and consumer protection at national and regional level;
9.5. Recognise and give legal effect to the COMESA Competition Regulations in Djibouti;
9.6. Add new provisions to complete the Djibouti Commercial Code;
9.7. Recommend the appropriate institutional structure for the creation of a national competition and consumer protection authority for the enforcement of the national competition and consumer protection law; and
9.8. Hold a validation workshop for the adoption of the recommended amendments of the review of the law.
IV. EXPECTED RESULTS
- To attain the objectives, the International Consultant, in liaison with the National Consultant, and under the supervision of the Commission and the Focal Point of the Ministry are expected to come up with the following results:
10.1. The relevant stakeholders consulted for their views and input into the competition policy formulation and law review process;
10.2. The national legislation on competition and consumer protection reviewed in line with the developed national competition and consumer protection policy and necessary amendments drafted and recommended;
10.3. A draft national policy for the promotion of competition and consumer protection developed;
10.4. The national competition and consumer protection legislation updated and harmonised with the COMESA Competition Regulations to ensure consistency;
10.5. The COMESA Competition law recognised and given legal effect in Djibouti;
10.6. The necessary draft amendments to the national competition and consumer protection law prepared; and
10.7. Recommendations made on the appropriate structure of a competition authority to be created for the enforcement of the national competition law.
V. DELIVERABLES
- The following are the expected deliverables on the part of the International Consultant which shall be delivered in liaison with the National Legal Consultant:
11.1. Submit an Inception Report to the Commission and the Focal Point of the Djibouti Ministry including the conclusions of the consultative meetings, the first draft National Competition and consumer protection Policy, inventory of the areas in the national competition and consumer law identified for review, the justifications for the review and the proposed draft amendments to the national competition and consumer protection law.
11.2. Prepare the Second draft Report highlighting the comprehensive draft amendments of the national competition and consumer protection law, in line with the aforementioned objectives, scope of work and expected results, following the consultative meetings and submit this Second draft Report to the Commission and Focal Point of the Djibouti Ministry of Trade for their comments, ensuring that the comments and the views of the Commission and the Ministry well addressed in the report.
11.3. Present the draft national competition and consumer protection policy and draft amendments of the national competition and consumer protection law to the key stakeholders for validation.
- The reporting requirements and time schedule for the deliverables are projected to follow the ensuing timeline:
