[Community-Discuss] Competition Commission Complaint - some more light

[Paul Hjul]

There was some discussion about two weeks ago

I wrote to the Commission, as anybody else could have, as the idea that
further information was not available seemed peculiar.

"I cannot find any indication on the site of a complaint having been
resolved or anything else concerning Afrinic at all and there is discussion
amongst members (I represent a member). There appears to be an effort to
infer reasons onto the commission that simply aren't given. My own view is
that there aren't competition law issues in Mauritius AT THIS TIME but that
there is a very fact specific analysis required.


If the commission could shed any light publicly this would be of great
benefit to the African Internet Community."


I've received the following reply - which in context (in light of what I
wrote to them) is not confidential:

Reference is made to the communication received below on 19th February,
2022 regarding the alleged conduct on the part of AFRINIC with respect to
transfer of number resources.



You may wish to note that following a complaint made on 29th July 2021 to
the Competition Commission (CC), the Executive Director of the CC initiated
an enquiry pursuant to the rule 5 (1)(c) of the Competition Commission
Rules of Procedure 2009.  The purpose of the enquiry was to determine
whether there were reasonable grounds to believe that the alleged conduct
on the part of AFRINIC in respect of the allocation of IP addresses could
give rise to potential competition concerns, reviewable under Part III of
the Competition Act 2007 (‘the Competition Act’).   Part III of the
Competition Act covers anti-competitive practices which can broadly be
grouped into collusive and other restrictive agreements; abuse of monopoly
situation; and merger that can substantially lessen competition.



Based on the information gathered and the assessment undertaken in the
context of the enquiry, the Executive Director of the CC came to the
conclusion that there were no reasonable grounds to believe that a
restrictive business practice within the meaning of the Competition
Act was occurring
or likely to occur.  As such, the matter has been closed with no further
action.



Please be advised that the decisions of the Competition Commission in
relation to investigations are made public.  This is not the case for an
enquiry, which is aimed at establishing reasonable grounds for the launch
of an investigation.


>From this it's Part III which is relevant. My reading of Part III is that
it doesn't apply unless AfriNIC is an enterprise. Now AfriNIC is not
allowed to be an enterprise in accordance with its charter as it may not
"engage in commercial activities for gain or reward" (the definition in the
Act). My view (which I am pretty sure I've stated, and seen misquoted) is
that IF AfriNIC were to depart from its non-profit and member's interest
character that a heap of problems would arise including competition
concerns. What is clear - and gives me great comfort as to the authorities
in Mauritius - is that a complaint was received on the 29th July 2021, this
complaint was properly considered and the Act was applied. Several months
(sufficient time not to be rushed but not a period of time that entails
dragging of feet or the like) went by and together with various similar
enquiries a proper determination that accords with the law was made. The
outcome is by no means a secret, but as generally is the case with a
preliminary enquiry conducted to ascertain if the predicates for a full
investigation are present the authority doesn't make a public statement.
This in my view accords with best practice as does giving a reply in this
form when asked about an enquiry.
The guidance I'd draw from this is that if AfriNIC follows its own rules
and does not operate illicitly as an enterprise there isn't going to be a
competition law issue, but that Mauritius law - including competition law -
is a very good set of guardrails on the organization.


Paul
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