Anglo-Dutch consumer goods giant Unilever has had a complaint over a South African competition investigation upheld.
The complaint relates to an investigation by South Africa’s Competition Commission into whether there was collusion between Unilever and fats and oil supplier Sime Darby in the manufacture and supply of edible oils and margarine in the country.
The Commission alleged Unilever and Sime Darby, as firms in a horizontal relationship, had a ‘general agreement’ between 2005 and 2013 not to compete with one another in the manufacture and supply of edible fats and oils.
This was done, it alleged, through various agreements where the companies agreed to divide markets by allocating goods and customers between themselves.
However, South Africa’s Competition Tribunal has upheld an exception application by Unilever and ordered the Commission to file a supplementary affidavit to clarify a number of points contained in its original complaint.
The Tribunal has ordered the Commission to set out whether it is restricting its case to just the written contracts alleged in the referral, which would make it difficult to appreciate how that would also constitute a concerted practice, or whether the regulator is relying on more than the agreements, which would then take the case further than “mere contracts and rely on conduct that constitutes concerted practices as well”.
The Tribunal said if the latter then the Commission needs to state this clearly.
Unilever has 20 days upon receipt of the Commission’s supplementary affidavit to file its response.
The Tribunal said the FMCG group had said it in its exception application, heard on 27 September, it is unable to make out the case brought against it, and is therefore unable to respond to the referral as it would be “gravely prejudiced” if it attempted to do so.
Antitrust authorities in South Africa have said there is no further action to be taken against Sime Darby.