Competition Enforcement in Testing Times: beyond the national level

1. Competition Enforcement in Testing Times: beyond the national level Frederic Jenny Professor of economics, ESSEC COMPETITION PRINCIPLES UNDER THREAT IDRC Pre-ICN Forum on Competition and Development, Zurich, Switzerland, 2 June 2009

2. The case of the beer industry in Africa

3. SAB Miller’s Expansion in Africa SAB first expanded beyond the borders of South Africa in 1910 with the formation of Rhodesian Breweries In 1951, Rhodesian Breweries invested in a new brewery in Ndola, Zambia In 1965 SAB acquired a minority investment in South West Breweries in Namibia. In 1973, SAB established breweries in Botswana and Angola and three years later acquired Swaziland Breweries. In 1980, the company expanded into Botswana by acquiring a controlling interest in Kgalagadi Breweries and completed its southern African beer involvement in 1981 by securing a controlling interest in Lesotho Brewing Company and Maluti Mountain Brewery. In 1994, SAB was invited to revitalise the beer industry in Tanzania – a joint venture with that country's government – and to re-enter the beer markets of Zambia, Mozambique and, later, Angola.

4. Competition in the Tanzanian Beer Market The entry of South African Breweries into the Tanzanian beer market through a joint venture with Tanzania Breweries has sparked a battle with Kenya Breweries, which used to dominate 70 percent of the market. "We have won the battle. What remains is a mopping up exercise and our aim is to gain 95 percent of the market," says Arnold Kilewo, Tanzanian Breweries managing director. Kilewo says that while at the time of joint venture, foreign products took up 70 percent of the Tanzanian beer market, his company has now regained nearly 80 percent of the market. Public opinion has long been against Kenyan Breweries, which has been criticized for treating Tanzania as part of its back yard. The appearance of canned beer on the market was the first blow against its dominance. 20 November 1997,Inter Press Service

5. Intensification of competition by SAB in the beer market in Kenya Kenya Breweries Limited, the giant bottlers controlling 95% of the beer business in Kenya, is undergoing a great deal of pressure from both South African Breweries who have started to build a bottling plant at Thika near Nairobi, and Kuguru Foods who have been challenging them for market share. The most worrying competition is from South African Breweries who already have two bottling lines in Mwanza and Dar es Salaam in Tanzania, and who have decided to bring the battle to Kenya Breweries on their own turf by putting up a bottling plant at Thika. SAB has already established itself within the focus area of sub-Saharan Africa and currently accounts for more than half of the beer produced and sold in the continent through its network of breweries located in Swaziland, Lesotho, Botswana, Zimbabwe, Mozambique, Zambia, Tanzania and South Africa. 01 October 1997, African Business

6. Transnational market sharing/merger in the beer ind (Kenya and Tanzania) Beermaker East Africa Breweries yesterday moved to consolidate its grip of domestic beer consumption by entering into a deal with its rival, Castle Brewing, that allows it to assume total control of the market. In the deal, East African Breweries cedes 20 per cent of the shares of its local subsidiary, Kenya Breweries, for a similar stake in Tanzania Breweries, which is owned by South African Breweries International. This amounts to the two parties entering into a gentleman's agreement to keep out of each other's turf, with South African Breweries taking control of the Tanzania market and East African Breweries retaining its hold on Kenya. The deal, announced yesterday, brings to an end the price wars between the rivals that have kept beer prices stagnant for the past five years. May 15, 2002, The Nation, Nairobi

7. South African Breweries SABI East African Breweries 20% stake 20% stake Tanzania Breweries Castle Brewing Kenya Thika Kenya Breweries LTD (KBL) Kibo Breweries Moshi Stops manufacturing In Tanzania Stops manufacturing in Kenya Kenya Tanzania

8. Limited Cross Licence South African Breweries SABI East African Breweries 20% stake 20% stake Tanzania Breweries Kenya Breweries LTD (KBL) Moshi Thika Kenya Tanzania

9. The deal is approved in Kenya and Tanzania The ( Kenyan) Government has approved the takeover of the Thika-based Castle Brewing Kenya Ltd by East African Breweries Limited (EABL). Finance Minister Chris Obure said in a Kenya Gazette notice dated June 20 that he had authorised the takeover. About 1,000 workers lost their jobs mid last month when CBK's parent firm, South African Breweries International (SABI), reached an agreement with EABL for shares exchange. Panafrican News Agency (PANA) Daily Newswire 26 July 2002, Dar es Salaam Tanzania's Fair Competition Commission Thursday approved a merger of Tanzania Breweries Limited (TBL) and its main rival, KIBO, after initially halting the deal on technical grounds. Industries and Trade Minister Juma Ngasongwa's approval endorses a market sharing arrangement consummated in May between their parent companies, South African Breweries International (SABI) and Kenya's East African Breweries Ltd (EABL). Tanzania was initially cagey about the deal, arguing that it could lead to price increases and job losses and the regulatory authority said its earlier fears had been allayed. "After careful consideration of the transaction and its impact to the economy, the Minister of Industry and Trade has duly approved the takeover as applied," Ngasongwa said in a statement. Jun 23, 2002, The East African Standard,Nairobi

10. Transnational market sharing/merger in the beer industry (Kenya and Tanzania) The merger has been severely criticised with cynics protesting that under the deal, TBL would control more than 90 percent of the beer market in Tanzania, with the only competition left coming from the less popular Associated Breweries of Dar es Salaam and imports. "The implication of such monopolies is obvious. Breweries end up with a free hand to hike prices at will, which is unacceptable under the liberalised economy that encourages fair trade practices," one analyst said. More disturbing, the analyst said, the merger was carried out clandestinely without the knowledge and authorisation of the minister responsible. 22 May 2002,Panafrican News Agency, Daily Newswire

11. Distribution restraints in the retailing bottled beer in Eastern Africa Quantity forcing A practice often engaged in by (…) Kenyan Breweries Limited. There is an unwritten rule that a minimum number of crates of CSD per month must be sold to retain the cooler (6 crates of 24bottles). Exclusive dealing. Retailers are prohibited from cooling rival products in the allocated coolers in most African countries of Eastern and Southern Africa. RPM Kenyan Breweries fix retail level prices (through advertisement on suggested retail price) Exclusive distribution through allocation of distributors who serve a given geographical area ( however difficult to make such restrictions apply) David Ong’olo Distribution Restraints: Experiences in the Beer and Soft Drink Industries in Africa, 2004

12. Privatization of SOE and the Entry of SABI in the beer industry Mozambique 1997 Mozambique's national brewery (Cervejas de Mocambique (CDM) which is 65% is owned by South African Breweries) is the only company in the war-ravaged country to have qualified for listing on the proposed Maputo Stock Exchange. (…) The companies form part of 900 state enterprises which have been privatised since 1989 and include CDM, which was privatised two years ago when SAB bought into it. The government has retained a 30% share in the brewery, while private sector broker, SPI Investimentos, bought the remaining 5%. MAPUTO African Eye News Service, January 6, 1999

13. Consolidation of the beer industry in Mozambique The 400 workers made redundant from the Laurentina brewery in Maputo lost their jobs when Cervejas de Mocambique (CDM), the local subsidiary of South African Breweries (SAB), took over Laurentina. It was said that Laurentina had gone bankrupt, a claim which the workers vehemently denied.(…) The workers suspect that the declaration of bankruptcy was just an underhand manoeuvre to secure an SAB monopoly over the Mozambican beer market.(…). Maputo, May 31, 2003 (Agencia de Informacao de Mocambique

14. The planned expansion of SAB in West Africa SAB, having established a foothold in East Africa, is now shaping up to move into the West Africa market, the Financial Mail reports. SAB already owns breweries in Ghana, and has now begun exporting stout to Nigeria, Africa's second-largest beer market after South Africa itself. The company also plans to sell its stout in Cameroon, Africa's third largest beer market. SAB estimates that stout, which is a dark-brown beer brewed from roasted malt, could hold as much as 30 percent of the market in West Africa. 21 February 20,2001 Chamber World Network

15. EUROMED MARCHETroisième phaseSéminaire intra-régional sur :Les règles de concurrence dans les pays signataires de l’accord d’AgadirAmman – Jordanie3 – 6 Avril 2006

16. Fusions concentrations • Secteur Brasserie (Castel) • Boissons gazeuses (2 opérations) • Semences sélectionnées de betterave (Advanta - florimond) • Secteur du fer à béton (sonasid-longometal) • Papier et Carton • Produits pétroliers et gaz butane (AKWA-Somepi) • Secteur Production du sucre

17. Fusion dans le secteur des bières et boissons gazeuses • concentration entre la SNI (Groupe ONA) et la société des brasseries et glacières internationales SBGI (Groupe Castel France) portant sur la Société des Brasseries du Maroc. • Après examen de ce projet de concentration et analyse des éléments contenus dans le dossier, il ressort que  : Présentation du Maroc EUROMED MARCHE, Séminaire intra-régional sur : Les règles de concurrence dans les pays signataires de l’accord d’Agadir Amman – Jordanie,3 – 6 Avril 2006

18. Fusion dans le secteur des bières et boissons gazeuses • (….) • le projet de concentration porte sur deux marchés  : • celui des bières dont la part du nouvel ensemble est de l’ordre de 97%.; • celui des boissons gazeuses dont la part du nouvel ensemble est de l’ordre de 43 %. La société des Brasseries du Maroc en détenait déjà 32%. Présentation du Maroc EUROMED MARCHE, Séminaire intra-régional sur : Les règles de concurrence dans les pays signataires de l’accord d’Agadir Amman – Jordanie,3 – 6 Avril 2006

19. Merger in the beer and soft drinks sector Arguments used to justify authorization of this merger Impact on the Moroccan economy is positive, because the presence of Groupe Castel will : Reduce the risk of the domestic market being dominated by imports, particularly in an era of globalization and dismantled customs barriers ; Improve the quality of products available to consumers ; Create jobs, in addition to the importance of the amount invested (more than 1.7 billionDH ) (170 million Euros). Présentation du Maroc EUROMED MARCHE, Séminaire intra-régional sur : Les règles de concurrence dans les pays signataires de l’accord d’AgadirAmman – Jordanie,3 – 6 Avril 2006

20. Merger in the beer and soft drinks sector Because of the size of our domestic economy, the merger phenomenon has a different meaning from that observed in developped countries, so that some mergers create a critical mass leading to scale economies, which are a source of efficiency, while also ensuring competitiveness against foreign competition. Fears often expressed at the time of a merger, concerning possible anti-competitive abuses of the dominant position resulting from the merger are not justified because such abuses are prohibited by competition law. Présentation du Maroc EUROMED MARCHE, Séminaire intra-régional sur : Les règles de concurrence dans les pays signataires de l’accord d’AgadirAmman – Jordanie,3 – 6 Avril 2006

21. (….) While we will always remain true to our roots in the wine business, we are fast becoming a significant force in the beer and soft drinks sectors. These last few years have seen us consolidating our acquisitions, upping our investments and strengthening our knowledge base in each of these areas. (…) We can see how our traditional values of listening, pragmatism, goodwill and efficiency link in with today’s international cooperation, synergy and flexibility to open up a future where we are even better placed to serve our customers and partners. As a family concern we are in a position to direct all our resources into giving customers the best possible value for their money. As a group, our aim is to go forward in a spirit of deference to build for the future and continue to develop all our areas of expertise

22. Houblon.net « Portrait de Pierre Castel », May 2008 The Dutch brewer, Heineken, gave up production in Angola during the war. The Heineken facilities were taken over by Castel, who is still operating in Angola, where he has made substantial profits. In the mid 1970s, when wine sales were down in France, 33 Export and Castel beer sales were high in the former Portuguese colony. So were profits. Castel Frère’s gross margin exceeds 50%. Africa is a cash cow for the company. Trusting his luck, Pierre Castel reinvested his profits. He multiplied his market conquests : Cameroon, Togo, Mali, Tchad, Senegal, Niger, Benin... until he acquired Brasseries et Glacières Internationales, in 1990, which guaranteed his company’s dominant position in Africa. Castel also became the exclusive Coca Cola bottler in a dozen African countries. This year more than 2 billion liters of beer and soft drinks will be produced by his various African plants.

23. Houblon.net « Portrait of Pierre Castel », May 2008 Man to man. Over the years, his contacts increased. African heads of state become his « friends ». « If someone gives me a hard time, I get in touch with my friends so they can solve the problem, he says. Like imports by Lebanese merchants in the Central African Republic. « I told the government: If you don’t stop them, I will freeze my investments. »Same thing in the Ivory Coast, where he controls one of the major sugar plants, Sucaf. This spring, he asked to see Laurent Gbagbo so that over the border smuggling would be stopped. A few weeks later, the Ivory Coast government banned sugar imports for two years ! Castel’s sister, Christiane, explains: «We are true to our word. » Pierre’s version: « I’m not linked to any scandals ! »

24. Strategic Alliance between SAB and Castel South African Breweries plc (SAB) and the Castel Group, Africa's two largest beverage companies, have joined into a strategic alliance to rationalise and strengthen their operations on the continent. SAB will acquire a 20% stake in CBB, whilst the Castel Group will acquire a 38% stake in SABI Africa, effectively by way of share exchange. SABI Africa has operations in 12 countries, including Angola, Botswana, Uganda, Ghana, Kenya, Malawi, Tanzania, Zambia and Zimbabwe. Castel Group has beer, carbonated soft drink and mineral water interests, in Francophone Africa, including Angola, Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Cote d'Ivoire, DRC, Ethiopia, Gabon, Mali, Tunisia, Morocco, Niger, Senegal and Togo. 07 March 2001New Vision

25. International cartels and developing countries Castel subsidiaries have varying degrees of profitability; all are high performers. According to SAB Miller, Castel sold 13.4 million hectoliters of beer in 2007 (+ 5,5 %). These sales figures were made possible by a market sharing agreement, made in 2001, that enabled both groups to protect their preferred zone, without fierce competition. A monopoly in progress ? « This agreement enabled us to develop opportunities », justified, Najil Fairbass, SABMiller Communications Director. Before adding : « There may be antitrust laws at the national level, but none covering the continent. I don’t see what the problem is. » Philippe Perdrix Le marché de la bière africaine monte en pression Jeune Afrique 10/09/2008

26. Some insights from these (and other) examples • In small emerging economies, national markets are small and • there is room for only a few players ( justification for beer mergers • in Tanzania, Kenya, Morocco) • 2) In some sectors such as cement, beer, infrastructure the role of • multinational firms in the economy of small developing countries • will be crucial ( SAB and Castel dominate most beer markets in • Africa). • 3) Multinationals entered national markets either through the • privatization process or by establishing a joint venture with local • players. Multinational firms tend to be more efficient than domestic • firms which have difficulties competing with them.

27. Some insights from these (and other) examples 4) In each country the domestic (national) market rapidly becomes a tight oligopoly or a monopoly. The local oligopolists (monopolists) are often the main source of potential ( foreign) competition.( In the African beer sector Castel is the most likely competition to SAB and vice versa) 5) The ( multinational) oligopolists or the monopolists are simultaneously present in a number of countries (on a number of (national) markets) and therefore develop multi- national market strategies. As a result competition will be further weakened by the fact that in case of a competitive attack on a dominant multinational firm in one country, the attacked firm can retaliate against its attacker on a number of other national markets (example: when SAB attacked KBL in Tanzania, KBL retaliated in Kenya)

28. Some insights from these (and other) examples 6) Strategic barriers to entry are also high ( in the beer industry) because of the vertical restraints incumbent oligopolists or monopolists can impose on the retail sector and because of their connections with the political leadership ( example: anti-competitive practices in East Africa and Castel interview) 7) In developing their multinational strategies the regional oligopolists are aware of the fact that there is no trans-national competition law and that they can allocate national markets among them. ( example: SABI CEO did not see any problem dividing the West African market with Castel since they is no pan-African competition law)

29. Some insights from these (and other) examples 8) The interdependence between national markets means that events or transactions occuring outside of a country are likely to affect the competitive conditions of that country.( The fact that Castel has committed itself not to attack SABI on its traditional market means that SABI will not compete with Castel in Morocco). 9) National competition authorities only have a limited ability to meaningfully enforce their domestic laws as they do not always have a full knowledge of the relevant events taking place outside the country but influencing competition domestically and/or do not have control over them.( Did the Moroccan authority realize that because of the market sharing between Castel and SABI efficiency beneifts were unlikely to translate into consumer benefits ?)

30. What do we learn from these (and other) examples • Competition policy and trade policy must be better coordinated. • (The market sharing between SABI and KBL in East Africa or • between SABI and Castel in West Africa deprive African countries • from the benefits of trade) • 11) Only cooperation between national competition authorities and/ • or the development of regional approaches to competition law • enforcement could alleviate the situation.(Wemoa,Comesa,CEMAC • etc..) • Query: would the transactions or agreements reviewed have been tolerated if European competition law applied to the African continent ?

31. Thank You for Your Attentionfrederic.jenny@gmail.com