COMESA CC Approval of the BIH and Carlsberg Beer Merger

Anthea Paelo

In April 2017, the COMESA Competition Commission (CCC) conditionally approved a large merger between Brasseries Internationales Holdings (BIH) Ltd and Carlsberg Malawi Ltd (Carlsberg). BIH is the holding company of Castel Group, a French beverages company. The second party to the merger, Carlsberg, is a beverages manufacturer participating solely in the Malawian market in Africa. The merger spans four countries: Ethiopia, Malawi, Madagascar and the Democratic Republic of Congo. The conditions to the merger included a commitment to not engage in information exchange or anticompetitive behaviour; that retrenchment be withheld for a period of 24 months; that the company continue to build the capacity of its employees; and that contracts with local input suppliers not be terminated for a period of 12 months.

The merger occurs in the context of a highly concentrated sector in which a small number of firms have significant market power in particular geographical locations. SABMiller, for instance, has a 90% market share in South Africa. It also maintains a dominant position as a beer producer in at least 15 African countries with representation in an additional 21 countries through a strategic alliance with the Castel Group (excluding South Africa and Namibia). Similarly, East African Breweries has 90% market share in Kenya. The already highly concentrated market was further consolidated in 2016 when SABMiller, the second largest beer producer in the world, was acquired by Anheuser-Busch InBev, the largest producer in the world.

Concentrated sectors are prone to anticompetitive conduct and are often characterised by abuse of dominance, price fixing, collusion and allocation of markets with negative effects on consumers.1 This anti-competitive conduct is clearly illustrated in the African beer market. For instance, the beer industry in Africa is characterised by a number of geographical or territorial allocation agreements, as detailed in an earlier CCRED Quarterly Review article, many of which include Castel and SABMiller. The Competition Commission of Mauritius (CCM) has in fact already fined a subsidiary of one of the parties to the new merger for participating in a regional cartel. Stag Beverages Ltd, a subsidiary of Castel, and Phoenix Beverages were penalised MUR27 million (approximately USD800 000) for a market arrangement in which the parties agreed to share the beer markets in Mauritius and Madagascar. Additionally, the dominant beer firms appear to view allocation of markets across countries as a key strategy considering the lack of transnational competition law, and given significant scale economies in beer production.2

In view of the nature of this market and the history of anti-competitive conduct, the CCC’s recent decision to approve the merger between BIH and Carlsberg is surprising. This is especially true since, in its ruling, the Commission noted that the merger raised competition concerns particularly with regards to potential coordinated effects between SABMiller and Castel which owns 38% of the SABMiller African business. The Commission also observed that the market appeared to be allocated wherein Carlsberg beer produced in Malawi was not exported to neighbouring countries and SABMiller products were similarly not exported into Malawi from neighbouring countries.

A further critique of the decision is the manner in which the merger was assessed. The CCC does not appear to fully consider the implications of the merger at a regional level despite its mandate as a regional competition body. By assessing the merger through a narrow country-market scope, the CCC ignored the fact that these companies could be potential competitors through selling in each other’s territories and that implementation of the merger would serve to remove a potential rival within the Malawian market and neighbouring countries. The decision is even more unexpected when considering that the CCC had recently announced its intention to pursue more restrictive business practice cases including cartels that operate across the region.

The potential for anti-competitive conduct and the resulting negative effect on consumers suggest that the merger should either have been prohibited or at least approved with stronger conditions. The conditions to commit to allowing free trade across countries and to not participate in information exchange seem to be insufficient to deter anti-competitive conduct in the sector. A more practical condition might have been to compel Castel to dispose of its 38% share in SABMiller’s African business to an independent beer producer. It remains to be seen if the current conditions placed on the merged entity will allow for increased rivalry and competition in the beer market in Malawi.

  1. Bernheim, B. D. & Whinston, M. D. (1990). Multimarket contact and collusive behaviour. The Rand Journal of Economics, 1-26 and Roberts, S. (2012). ‘National Dominant Firms, Competition Law and Implications for Economic Development in Southern-Africa: case study of energy, beer and food’. Instituto de Estudos Sociais e Económicos Conference, Conference Paper 17.
  2. Jenny, F. ‘Transnational market sharing and coordination of national competition authorities law enforcement’. Presented at 3rd Annual Competition Commission, Competition Tribunal and Mandela Institute Conference on Competition Law, Economics and Policy, Pretoria, South Africa, 3-4 September 2009.