[Column] Leana Englebrecht: Swaziland Competition Commission requires payment of higher merger filing fees
In Swaziland, mergers are classified as either small mergers or large mergers. A small merger is a merger where the combined annual turnover or asset values of the merging parties do not exceed SZL8 million (approximately USD600,000).
A large merger is a merger where the combined annual turnover or asset value of the merging parties exceeds this amount.
The purpose of this distinction is to determine whether a merger filing fee is payable by the merging parties in respect of the notification of the merger to the Swaziland Competition Commission . Merging parties notifying a small merger are not required to pay a merger filing fee and merging parties notifying a large merger are required to pay a merger filing fee equal to 0.1% of the combined turnover and asset values of the merging parties (whichever is the higher), capped at a maximum of SZL600 000 (approximately USD45 000).
This merger filing fee regime is determined in accordance with the Competition Commission Regulations Notice, 2010. The Regulations are silent on whether the calculation of the merger filing fees should take into account only the local turnover and assets of the merging parties (as is usually the case in most merger control regimes).
The SCC had, however, previously published External Merger Guidelines that state that the combined global turnover and asset values of the merging parties are relevant for purposes of calculating the merger filing fee payable to the SCC.
Since December 2016, the SCC has implemented this specific section of its External Merger Guidelines, forcing merging parties to calculate the relevant merger filing fees with reference to global combined asset values and turnover. This approach, naturally, impacts on transactions involving multinational entities and inevitably lead to higher merger filing fee being payable to the SCC.
It appears that neither the Swaziland Competition Act, 2007 nor the Regulations empower the SCC to charge merger filing fees with reference to the global asset values and turnover of the merging parties and further neither the Act nor the regulations empower the SCC to publish any binding guidelines (such as the External Merger Guidelines) of this nature.
Nevertheless, this is the practice presently adopted by the SCC and this practice will remain until such time as local courts pronounce on this issue.
Leana Englebrecht is a Senior Associate, Competition and Antitrust Practice, Baker McKenzie