Presentation of the ECOWAS Regional Competition Authority

The Economic Community of West African States (ECOWAS), which includes 15 Member States (Benin, Burkina Faso, Cape Verde, Ivory Coast, Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone and Togo), has introduced a merger control regime implemented by the ECOWAS Regional Competition Authority (ERCA).

The ERCA became officially operational on 1 October 2024, date on which the members of the Council, the ERCA's decision-making body, were sworn in before the ECOWAS Court of Justice .

Notification thresholds

Regulation No. C/REG.23/12/21 dated 10 December 2021, on the rules of procedure for mergers and acquisitions in ECOWAS, introduced an ex-ante merger control regime implemented by the ERCA, whereas mergers in the ECOWAS Common Market were previously examined only from the abuse of a dominant position perspective.

Pursuant to Implementing Regulation No. 1/01/24 of January 2024 on the ERCA's procedural manuals on thresholds for mergers and acquisitions, this new regime is applicable to any mergers where, on the one hand, the parties concerned are present in at least two ECOWAS Member States and, on the other hand, the transaction crosses one of the following two alternative thresholds:

• the combined turnover or any relevant balance sheet item (whichever is higher) of the parties to the transaction exceeds 20 million ECOWAS units of account in ECOWAS, i.e.24.58 million euros (one unit of account is equivalent to 1,2291 euros on 30 October 2024), or
• the turnover of at least two of the parties to the transaction or any relevant balance sheet item (whichever is higher) exceeds 5 million ECOWAS units of account in ECOWAS, i.e. 6.14 million euros.

It should be noted that, according to the ERCA, the two Member States condition is met even if the target is active in only one Member State, as long as the purchaser is active in one or several other Member State(s).

Notification procedure

The ECOWAS merger control regime has a suspensive effect whereby the transaction cannot be implemented until the authorization decision has been obtained.

The Executive Director of the ERCA has 60 working days (which may be extended by a maximum of 20 working days if additional information is requested) from the date of reception of the notification to make a recommendation on whether or not to authorize the transaction. This recommendation is submitted to the ERCA Council, which in turn has 30 working days (which may be extended by a maximum of 15 working days if additional information is requested) to authorize or refuse the transaction, with or without commitment.

As part of its assessment, the ERCA checks whether the transaction is likely to significantly reduce competition within the Common Market. It may also consider other non-competitive criteria, such as the contribution of the transaction to the public interest.

In principle, the ERCA has exclusive jurisdiction to review and authorize a merger implemented within ECOWAS.

Notification fees

The notifying party must pay a notification fee up to 0.1% of the combined annual turnover or the combined value of the assets (whichever is higher) of the companies concerned within ECOWAS, it being specified that the regulations do not set a ceiling.