The Court of Justice as the Court of Appeal for COMESA Competition Law
The COMESA Court of Justice has not yet ruled on any competition related disputes or appeals. A COMESA legal regime for competition regulation in the Common Market does, however, exist. It consists of the Competition Regulations and the COMESA Competition Rules. The question addressed here is what role the COMESA Court of Justice plays in adjudicating disputes or appeals about competition issues in the Common Market.
In 2004 the Organization adopted a comprehensive set of Competition Regulations. They are binding on the State Parties and give effect to Article 55 of the Treaty; which states that the Member States “agree that any practice which negates the objective of free and liberalised trade shall be prohibited. To this end, the Member States agree to prohibit any agreement between undertakings or concerted practice which has as its objective or effect the prevention, restriction or distortion of competition within the Common Market”.
There are thus two legal regimes which govern the enforcement of competition law and policy in the COMESA Member States:
National competition laws apply to the enforcement of anti-competitive practices emanating at national level. National competition authorities in the respective Member States exercise the required powers and enjoy the necessary jurisdiction in terms of national legislation.
The regional competition regime is invoked where there is a cross border impact of anti-competitive behaviour or a real prospect thereof.
The COMESA Competition Regulations do not refer to the Court of Justice and does not grant a right of appeal to the Court against decisions of the Board. There are several references to “appeals” in the Regulations (e.g. in Arts 15, 26 and 33) and some are dependent on further rules being adopted. They refer to the appeals heard by the Board.
However, it is generally accepted that, by necessary implication, the COMESA Court of Justice exercises jurisdiction over all disputes about the application and interpretation of COMESA legal instruments. It should, therefore, also be able to hear appeals against the decisions of the Board of Commissioners.
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