CALL FOR INPUT

Holistic Review of the ECOWAS Competition Policy and Legal Framework

Invitation to submit evidence, experience and reform proposals

1. Purpose of this call

The ECOWAS Commission and the ECOWAS Regional Competition Authority (ERCA) are undertaking a holistic review of the ECOWAS Competition Policy and Legal Framework. The review will assess the existing policy, legal, institutional and operational framework and develop a modernised and consolidated package of instruments to support effective and coherent competition enforcement across the ECOWAS region.

ERCA invites written inputs from interested stakeholders. Submissions will help identify practical shortcomings in the current framework, assess its interaction with national and sectoral regimes, and inform the policy choices and legal drafting required for the revised framework.

2. Context and scope of the review

The ECOWAS Regional Competition Policy Framework was adopted in 2007 and was followed by the 2008 Supplementary Acts on the Community competition rules and the establishment of ERCA. Further reforms adopted in 2021 amended ERCA’s institutional framework and introduced or strengthened several implementing instruments.

The present review responds to experience gained in implementing these instruments, differences among national competition regimes, developments in key regulated sectors, digital transformation and platform markets, new business models, and the need for coherence with relevant regional and continental frameworks, including the AfCFTA Protocol on Competition Policy.

The review covers, among other matters:

• the objectives, principles and sectoral orientation of the ECOWAS Regional Competition Policy Framework;
• the Community rules on restrictive agreements, abuse of dominance, mergers and acquisitions, State aid and related matters;
• the mandate, governance, independence, powers and procedures of ERCA;
• the allocation and coordination of enforcement responsibilities among ERCA, Member States, WAEMU, sector regulators and relevant continental bodies;
• investigative and decision-making procedures, rights of defence, confidentiality, sanctions, remedies and judicial review;
• the existing Regulations, Implementing Regulations, procedure manuals, forms and operational tools; and
• new or revised guidelines on mergers, proceedings before the ECOWAS Court of Justice, confidential information and conflicts of interest.

3. Who is invited to respond?

ERCA welcomes inputs from all interested persons and institutions, including:

• ECOWAS Member States, national competition and consumer protection authorities, ministries and other public bodies;
• WAEMU institutions, sector regulators, public procurement authorities, courts and tribunals;
• businesses of all sizes, digital platforms, public enterprises, investors, professional and trade associations, and chambers of commerce;
• legal practitioners, economists, compliance professionals and other advisers;
• consumer organisations, civil society organisations, labour organisations and development partners;
• universities, research institutions, think tanks and individual experts; and
• other regional or international organisations with relevant experience.

4. Issues on which input is sought

The questions below are intended to guide submissions and are not exhaustive. Respondents should focus on the matters on which they have relevant knowledge or experience.

A. Objectives and orientation of regional competition policy

1. What should be the principal objectives and guiding principles of ECOWAS competition policy in the present economic and institutional context?

2. How should the revised framework balance consumer welfare, market integration, efficiency, innovation, market access, inclusive growth, the participation of small and medium-sized enterprises, industrial development and other Community objectives?

3. How should competition policy interact with trade, industrial, investment, public procurement, consumer protection, sustainability and other regional policies?

4. Which developments in key sectors, including telecommunications, digital services, financial services, energy, transport, agriculture and distribution, should be reflected in the revised policy framework?

B. Substantive competition rules

5. Which provisions on restrictive agreements and concerted practices require clarification, amendment or additional guidance? Please identify any issues concerning exemptions, authorisations, vertical restraints, trade associations, information exchange or public-interest considerations.

6. Are the rules on abuse of dominance sufficiently clear and effective? What changes are needed concerning market definition, dominance, collective dominance, economic dependence, exclusionary or exploitative conduct, essential facilities, or remedies?

7. Does the framework adequately address digital and platform markets, including network effects, data advantages, ecosystem power, self-preferencing, tying, interoperability, access restrictions and the position of business users? Should any additional ex ante or designation-based tools be considered?

8. How should the regional merger-control regime be improved, including its jurisdictional nexus, notification thresholds, review periods, filing process, substantive test, public-interest assessment, referrals, remedies, interim measures and treatment of non-notifiable transactions?

9. What rules and procedures are needed to make State aid control workable, proportionate and consistent with regional development objectives?

10. Should the revised framework contain clearer rules for public enterprises, undertakings entrusted with public services, State-created monopolies, concessions or exclusive rights?

C. Institutional architecture, jurisdiction and cooperation

11. Are ERCA’s mandate, functions, investigative powers, decision-making arrangements and institutional safeguards sufficiently clear? What reforms are required?

12. How should jurisdiction and case allocation be determined between ERCA and national competition authorities, particularly where conduct or transactions affect more than one Member State?

13. What mechanisms would promote effective cooperation among ERCA, Member States, WAEMU, sector regulators and AfCFTA institutions while reducing duplication, inconsistency and unnecessary burdens?

14. What arrangements are needed for referrals, parallel investigations, exchange and use of confidential information, mutual assistance, recognition or enforcement of decisions, and resolution of jurisdictional disagreements?

15. How can Member States participate effectively in regional enforcement and in the development, implementation and review of ECOWAS competition policy?

D. Enforcement procedure, due process and judicial review

16. Which aspects of complaints, preliminary assessment, investigations, inspections, requests for information, hearings and decision-making require clearer rules or time limits?

17. Are the rights of complainants, investigated parties and third parties adequately protected? Please comment on notice, access to file, the right to be heard, legal professional privilege, representation, language, reasoned decisions and procedural transparency.

18. How should the framework deal with confidential information, business secrets, personal data, disclosure and publication of decisions?

19. What procedures should govern interim measures, commitments, settlements, leniency and immunity, withdrawal of complaints, prioritization and case closure?

20. Are the available sanctions, remedies, periodic penalty payments, compensation mechanisms and rules on liability effective, proportionate and sufficiently predictable?

21. What procedural guidance is needed for appeals or other proceedings before the ECOWAS Court of Justice, including standing, applicable time limits, the record before the Court and the effect of review proceedings?

22. What rules are required to prevent, disclose and manage conflicts of interest within ERCA’s investigative, advisory and decision-making processes?

E. Operational implementation

23. Which Regulations, manuals, guidelines, forms, templates, digital systems or internal procedures are most urgently needed to support effective enforcement?

24. What practical obstacles have stakeholders encountered when engaging with ERCA or national authorities, and how could procedures be made more accessible, timely and predictable?

25. What capacity, data, staffing, funding, technology, advocacy or institutional-coordination measures are necessary to implement the revised framework?

26. Which transitional arrangements and implementation sequence would best support the move from the existing instruments to the revised framework?

27. What indicators should be used to assess whether the revised framework is improving competition, enforcement coherence, market integration and consumer welfare?

F. Evidence and additional proposals

28. Please provide examples of cases, transactions, market practices or institutional experiences that reveal strengths, gaps or uncertainty in the present framework.

29. Please identify any provisions that should be retained, amended, repealed or consolidated, and explain why. Proposed drafting language is particularly welcome.

30. Please identify relevant legislation, decisions, studies, data, guidance or comparative models that should inform the review.

31. Are there any other matters that should be addressed to make the ECOWAS competition framework coherent, modern, enforceable and responsive to the needs of the regional market?

5. How to make a submission

Respondents may identify themselves, provide contact details and briefly describe their institution, role or interest in the review, but are not required to do so. Respondents who request confidential treatment are encouraged to provide a contact email address, so that ERCA can seek clarification of the request where necessary.

Submissions should:

• indicate the questions or themes addressed;
• state the respondent’s views, supporting reasons and, where possible, practical examples or evidence;
• clearly identify any information for which confidential treatment is requested and provide reasons for the request; and
• be submitted in English, French or Portuguese by the closing date stated above.

Submissions may be provided in any clear format. Respondents may use either the optional response template or the online questionnaire, both published alongside this call. Supporting documents may be attached or referenced through accessible links.

6. Confidentiality, use and publication of submissions

Information received will be used for the purposes of the review and may inform the diagnostic report, policy proposals and draft legal instruments. ERCA may publish submissions or a summary of the consultation, subject to applicable confidentiality requirements.

A respondent requesting confidential treatment should submit: (i) a complete version clearly marking the confidential information; (ii) a non-confidential version suitable for publication, where practicable; and (iii) a brief explanation of the basis for each confidentiality claim. ERCA reserves the right to seek clarification concerning confidentiality requests.

Personal information will be handled in accordance with applicable ECOWAS rules and policies. Respondents should avoid including personal data that are not necessary for the purposes of their submission.

7. Next steps

The inputs received will be analysed alongside the existing ECOWAS instruments, Member State frameworks, operational experience and relevant comparative materials. Stakeholders may subsequently be invited to targeted interviews, technical meetings or validation workshops. Submission of a response does not guarantee an invitation to any subsequent engagement.

8. Enquiries

Questions concerning this call may be sent to lugbajah@erca-arcc.org, info@erca-arcc.org, Anyerca-arcc.org,

Any clarifications of general relevance may be shared with other stakeholders.