Learnings from the first year of the new ECOWAS merger control regime

It has now been a little over a year since the ECOWAS Regional Competition Authority (ERCA) started accepting and reviewing merger notices, in January 2025. At the time, it became the third active regional merger control regime in Africa, alongside the active merger control regimes of the Common Market for Eastern and Southern Africa, and the Central African Economic and Monetary Community.

Questions remain over "onestop shop" jurisdiction

There is some uncertainty over whether the ECOWAS Member States need to domesticate the ECOWAS rules and regulations before they can be binding at national level. Our reading of the ECOWAS Community Competition Rules is that they confer exclusive jurisdiction over mergers with a regional effect to ERCA, and this reading is shared by the Executive Director of ERCA. In practice, however, the competition regulator of Nigeria has so far not accepted ERCA's exclusive jurisdiction over regional mergers that also have an effect in Nigeria, instead requiring parties to submit separate filings to it and pay filing fees. Clients should be prepared for potential dual-filing obligations until clearer case law or political alignment emerges.

Merger filing thresholds can be met by just one party

The ERCA's decisional practice so far has been that the combined turnover or asset threshold will be met by the ECOWAS turnover or thresholds of only one of the parties to the transaction. This means, for example, that when the acquiring group has ECOWAS revenues in excess of EUR 25 million, it will need to seek clearance, even when the target has insignificant revenues in ECOWAS, or indeed has revenues in a single Member State.

Uncapped filing fees can be significant

ECOWAS merger filing fees are set at 0.1% of the parties' combined ECOWAS revenues or asset values without any caps. This can easily trigger filing fees of more than USD 1 million in transactions involving parties with significant ECOWAS revenues.

That said, the ERCA's decisional practice has given indications that it is aware of the potential pitfalls from uncapped filing fees, including disincentivising ECOWAS centric transactions or disincentivizing parties to global mergers from filing in ECOWAS. ERCA has in practice accepted to reduce filing fees in certain cases by using ECOWAS turnover generated by the division of a conglomerate acquiring group that is relevant to the transaction, instead of the ECOWAS turnover of the whole group. This seems to be done on a case-by-case basis and parties to transactions will need to proceed on the basis that the filing fees will be based on total ECOWAS group turnover until derogations are agreed with ERCA.

Case teams are open to dialogue with the parties

In principle, the filing is submitted online on ERCA’s website, but ERCA is open to receiving filings by email in case of technical issues. Once the complete notice is submitted, the merger will be reviewed by a case team comprised of junior case handlers and the case manager, overseen by the Executive Director. The case teams are generally open to meeting with the merging parties (incl. via video conference) to discuss the progress of the review in general, forewarn parties of any concerns raised by the transaction, and provide insights on eg, whether proposed remedies are likely to be acceptable to the decision-makers.

Gun-jumping penalties can be high

Failure to notify a notifiable merger to ERCA could result in fines of up to WAUA 500,000 (approx. USD 660,000) per business day that the violation persists, without any statutory cap on the fines.

Merger filing forms and documentation burdens remain high

The notification form is extremely detailed and requires the notifying party to provide a large amount of information about the markets and how they operate (competitors’ sales and market shares, detailed assessment of the barriers to entry, whether the market is mature or innovative, relationships with customers, counterfactual in case the transaction would not occur, market efficiencies, etc.). The information required is the same even in non-complex transactions and proves particularly burdensome in cases where the overlaps in the parties’ activities are minimal and the level of market shares is limited. No short form is available at this stage for simple transactions raising no competition issues In respect of internal documents, ERCA accepts being provided only with those that analyse the transaction’s effects in respect of the ECOWAS community market.

Timeline for review

Based on decisions published by ERCA as of the end of 2025, the review period between the notification and the decision has been comprised between approx. 6 months and less than 6 weeks. In most cases, the transaction was cleared within 3 months.