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Modernization of Competition Law and Policy in Egypt: Past, Present and Future

Published online by Cambridge University Press:  09 January 2020

Dong-Hwan Kim*
Affiliation:
Hankuk University of Foreign Studies
Yo Sop Choi*
Affiliation:
Hankuk University of Foreign Studies

Abstract

Competition laws and policies play an important role in developing countries. More than 130 countries have adopted either a competition law or a similar framework of anti-monopoly laws that aims to improve social welfare. Most African countries have already started developing their competition regimes, and regional trade organizations in Africa have provided competition sections in their free trade agreements to enhance enforcement cooperation. For fledgling competition regimes in Africa, the improvement of effective public enforcement and competition law culture has become an essential driver of competition law development. In particular, Egypt has demonstrated its efforts towards the modernization of competition law and the enhancement of fair and free competition, which is an example of the development of the competition regime in a developing African country. This article discusses the development of the Egyptian competition regime from a comparative perspective and suggests proposals for its further modernization.

Type
Research Article
Copyright
Copyright © SOAS, University of London 2020

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Footnotes

*

Assistant professor, Department of Arabic, Hankuk University of Foreign Studies, South Korea.

**

Associate professor of law, Graduate School of International and Area Studies, Hankuk University of Foreign Studies, South Korea.

This work was supported by the Hankuk University of Foreign Studies Research Fund.

References

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24 For example, “COMESA Competition Commission investigates football broadcasting rights” (28 February 2017) Africanantitrust.com, available at: <https://africanantitrust.com/2017/02/28/comesa-competition-commission-investigates-anti-competitive-restrictive-practices/> (last accessed 17 November 2019).

25 See, for example, Lawan, MIslamic law and legal hybridity in Nigeria” (2014) 58/2Journal of African Law 303CrossRefGoogle Scholar.

26 The ECA often emphasizes the concept of the free market. See ECA “Free market”, above at note 20.

27 For example, Dabbah Competition Law and Policy, above at note 17 at 6.

28 Id at 21–22.

29 Many commentators seem to agree that Hisbah has a long history and that it prohibited fraudulent acts (ghishsh) following the words of the prophet, Muhammad: “Whoever cheats, he is not one of us”. See, for example, Hadith vol 3, book 12 at 1315, available at: <https://sunnah.com/tirmidhi/14/118> and Hadith, book 1 at 183, available at: <https://sunnah.com/muslim/1/190> (each last accessed 17 November 2019).

30 Dabbah Competition Law and Policy, above at note 17 at 27–28.

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32 Ṭaʿīmah, id at 28.

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34 Law No 3, above at note 16.

35 See ECA “General policy of the ECA” (in Arabic) at 4, available at: <http://www.eca.org.eg/ECA/Upload/StaticContent/Attachment_A/3/ECA%20General%20policy.pdf> (last accessed 27 November 2019).

37 Id at 6–7.

38 Id at 6 and 9.

39 Id at 10.

40 Art 5 of the Act articulates its extraterritorial application to undertakings whose acts result in “the prevention, restriction, [of] or harm [to] the freedom of competition” in the Egyptian market, which constitutes a crime under the Act.

41 ECA “General policy”, above at note 35 at 9–12.

42 Id at 14.

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47 Dabbah Competition Law and Policy, above at note 17 at 237–38.

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50 A vertical agreement that impedes competition is often considered to be a hardcore restriction with regard to trade between countries because it forecloses the market.

51 KH Attia “Developing effective relations with public prosecutors: The case of Egypt” The ICN Workshop, available at: <http://old.internationalcompetitionnetwork.org/uploads/library/doc716.pdf> (last accessed 27 November 2019).

52 This article does not deal with issues of merger control in Egypt. For further detail about Egyptian merger control, see Far, M ElLessons from the backyard of the EUMR: The Hyma plastic case in Egypt” (2012) 33/10European Competition Law Review 445Google Scholar.

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55 For further detail about the ECA's decision on beIN and CNE in 2017, see E Solyman “Egyptian Competition Authority watchdog says beIN Sports agreement with CNE legally invalid” (12 July 2017) Daily News Egypt, available at: <https://wwww.dailynewssegypt.com/2017/07/12/egyptian-competition-authority-watchdog-says-bein-sports-agreement-cne-legally-invalid/> (last accessed 27 November 2019). A number of court decisions relating to beIN Sports were made, including decisions of the Economic Criminal Court of Appeal in Cairo nos 2017-280 and 2017-1507. For further discussion of the trend towards regional cooperation regarding competition enforcement, see Fox “World competition law”, above at note 53 at 237.

56 Far, M El and Momtaz, MAEgyptian competition enforcement: Putting COMESA and LAS cooperation into practice” (2017) 8 Journal of European Competition Law and Practice 586 at 590Google Scholar.

57 The full text is available at: <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12008E101:EN:HTML> (last accessed 17 November 2019). The influence of the substantive EU provisions on free trade agreements in Asia is evident. See also Choi “Convergence of competition laws”, above at note 11 at 25–27.

58 For example, one of the distinctive objectives of the competition regime in South Africa is public interest. See Kelley, L et al. Principles of Competition Law in South Africa (2016, Oxford University Press) at 3Google Scholar.

59 Ma, TAntitrust and democracy: Perspectives from efficiency and equity” (2016) 12/2Journal of Competition Law and Economics 233CrossRefGoogle Scholar; Speelman “Competition law in the Middle East”, above at note 45 at 1231.

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65 See “Decision on Telecom Egypt” (ECA press release, in Arabic), available at: <http://www.eca.org.eg/ECA/upload/Publication/Attachment_E/123/عرض%20التقرير.pdf> (last accessed 28 November 2019).

66 For example, case 85/76, Hoffman-La Roche v Commission, ECLI:EU:1979:36.

67 See ECA “2017 annual report” (in Arabic) at 13–15, available at: <http://www.eca.org.eg/ECA/upload/Announcement/Attachment_A/86/Annual%20Report%202017-Final.pdf>  (last accessed 28 November 2019).

68 Case nos 2017-280 and 2017-1507, above at note 55.

69 “Egypt fines Qatar's beIN Sports CEO Nasser Al-Khelaidfi $22 million” (30 January 2018) Al Arabiya English, available at: <http://english.alarabiya.net/en/sports/2018/01/30/Egypt-fines-Qatari-Nasser-Al-Khelaifi-400-million-pounds-in-corruption-case.html> (last accessed 17 November 2019).

70 El Far and Momtaz “Egyptian competition enforcement”, above note at 56 at 588–89.

71 SA Alam “Proving a cartel without leniency programme: The Egyptian experience” The ICN Workshop, available at: <http://old.internationalcompetitionnetwork.org/uploads/library/doc724.pdf> (last accessed 27 November 2019).

72 See, for example, Lande, RHCreating competition policy for transition economies” (1997) 23 Brooklyn Journal of International Law 339 at 342Google Scholar.

73 Competition cases in Korea, China and Japan are often mentioned as useful citations. See, for example, Muddida et al “Kenya's new competition policy regime”, above at note 44. Vigorous enforcement can be supported by improving the competition culture. See also Choi “The choice of competition law”, above at note 14 at 146–49.

74 Furse Antitrust Law, above at note 48 at 259. Korean competition law includes a unique provision regarding unfair business practices that covers all types of commercial acts, the so-called catch-all provision.

75 See, for example, Kim, D-HClassification of Islamic unfair transactions upon the view of modern competition law in South Korea” (2018) 22 Arabic Language & Literature 121Google Scholar; Kim “The meaning of fair trade law”, above at note 31.

76 Several discussions have taken place regarding the transparency of the ECA's investigative powers. See Greiss, MInvestigative powers of the Egyptian Competition Authority: A guide for companies in the Egyptian market” (2010) 31 European Competition Law Review 456 at 465Google Scholar.

77 For example, M Greiss “Abuse of dominance under the Egyptian competition law: Investigating peculiarities that may have special effects in the economy” (2010) Mediterranean Competition Bulletin 22 at 23, available at: <http://ec.europa.eu/competition/publications/mediterranean/mcb_2.pdf> (last accessed 17 November 2019).

78 For example, the Korean Competition Act provides a presumption of market dominance when an undertaking's market share exceeds 50%, or when the total market share of three undertakings is above 75%. The Chinese Competition Act also provides a similar framework. For further detail, see Harris, HS et al. Anti-Monopoly Law and Practice in China (2011, Oxford University Press) at 96Google Scholar.

79 For further comparison, see Choi “The choice of competition law”, above at note 14 at 142–44.

80 Ghoneim, AFCompetition law and competition policy: What does Egypt really need?” (2003) 17 Boletin Latinoamericano de Competencia / Boletim Latinoamericano de Concorrncia 46 at 53Google Scholar; M El Far “The Egyptian state of competition: The steel market case study” (October 2014) at 22–26, available at: <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2515698> (last accessed 17 November 2019).

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82 There are few countries in southeast Asia that have a separate provision for vertical restraints. See, for example, Chew, CDiversity of national competition laws in the ASEAN region and the resulting challenges for businesses operating in the region” in Ong, B (ed) The Regionalisation of Competition Law and Policy within the ASEAN Economic Community (2018, Cambridge University Press) 58 at 84Google Scholar.

83 For example, Leegin Creative Leather Prods, Inc v PSKS, Inc 551 US 877 (2007), overruling the old per se rule on minimum resale price maintenance.

84 Far, M ElEnforcement policy of the Egyptian competition law: Vertical relations” (2014) 35/5European Competition Law Review 214Google Scholar.

85 Id “The Egyptian state of competition”, above at note 80 at 44 and following. Even before the adoption of Egyptian competition law, several governmental decisions were taken to prohibit the abusive practices of monopolists within the steel industry; see Selim, THMonopoly: The case of Egyptian steel” (2006) 2/3Journal of Business Case Studies 85CrossRefGoogle Scholar.

86 “COMESA Competition Commission”, above at note 24.

87 There were critical issues surrounding the ECA's independence and its powers relating to sanctions. See, for example, Waked “Law, society and the market”, above at note 15 at 13.

88 There has been external pressure by the US in pursuit of a democratization agenda in Islamic countries. See, for example, Dabbah Competition Law and Policy, above at note 17 at 237.

89 Ibrahim, AN and Far, M ElConstitutionalising the Egyptian competition policy in the post revolutionary reforms” (2011) 3 Mediterranean Competition Bulletin at 4Google Scholar, available at: <http://ec.europa.eu/competition/publications/mediterranean/mcb_3_1.pdf> (last accessed 17 November 2019).

90 Dabbah Competition Law and Policy, above at note 17 at 24.

91 For example, McMahon, KCompetition law and developing economies: Between ‘informed divergence’ and international convergence” in Ezrachi, A (ed) Research Handbook on International Competition Law (2012, Edward Elgar) 209 at 215Google Scholar.

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