Abuse Without Dominance in Africa? Some Tentative Thoughts on Article 11 of the AfCFTA Competition Policy Protocol

On 4 September 2026, the African Continental Free Trade Area (AfCFTA), in partnership with TBE Advisory Ltd, convened an AfCFTA Stakeholders’ Engagement Webinar, which I had the privilege of joining at the kind invitation of Mr Leonard Ugbajah and Dr Vellah Kigwiru. The webinar focused on digital competition regulation in Africa, with particular attention to Article 11, titled “Abuse of Economic Dependence and Any Other Anti-Competitive Practices,” of the AfCFTA Protocol on Competition Policy, adopted by the African Union (AU) Assembly in 2023 as part of the emerging continental competition framework.

This article develops some of the remarks I delivered at the webinar on Article 11, with the purpose of drawing attention both to this important development in AU competition law and to the wider evolution of dependence-centred competition rules, commonly called abuse of economic dependence (AED) or abuse of superior bargaining position (ASBP).

Overview of Article 11, as an Analytical Premise

The webinar kicked off with Leonard’s clear and well-structured lead presentation, which distilled the key issues raised by Article 11 and provided a great framework for the discussion that followed.

Building on Leonard’s presentation, my understanding of Article 11 is as follows.

Article 11(1) to (3) General AED (ex post)

Article 11 prohibits AED, independently of the prohibition of abuse of dominance under Article 9. In other words, the AfCFTA Competition Authority, once the Protocol is in force and the Authority is operational, will be empowered to sanction AED without having to establish dominance. The concept of economic dependence is further elaborated through the definition in paragraph (1) and its key determinants in paragraph (2) of the same article. Even where economic dependence is established, an assessment of competitive harm still appears to be required to establish abuse, under Article 11(3), which expressly applies if the conduct “substantially affects the functioning and structure of competition in the Market.”

Article 11(4) to (5) Digital-specific AED (ex ante)

Particularly interesting are paragraphs (4) and (5). Within Article 11, paragraph (4) sets out a specific list of prohibited practices by undertakings “designated as gatekeepers or core platforms”, which, on the face of the text, appear to operate as categorical per se prohibitions, while paragraph (5) provides for the Council of Ministers to develop implementing rules concerning designation. According to Leonard’s presentation, paragraphs (1) to (3) apply to AED generally, whereas paragraph (4) appears to create a stricter digital layer for designated gatekeepers or core platforms. Leonard reads Article 11(3) as reaching digital AED before or without designation. This appears consistent with its general wording, although the interaction between the two layers, especially how it will play out in enforcement practice, remains to be clarified.

Personally, what strikes me the most is that this stricter approach to digital abuse (meaning, the pre-defined ex ante prohibitions, combined with the designation process) appears to sit within the AED provision while remaining independent of Article 9 abuse of dominance. The placement of digital competition regulation within the AED provision seems quite novel, and I am reminded of the amended Article 9 of Italy’s Subcontracting Law (Law 192 of 18 June 1998), as a somewhat comparable example.

Guiding Questions for the Panel

Against this backdrop, five guiding questions were posed to the panellists, Vellah and me. While Vellah expertly addressed the African competition law part of the discussion (for Vellah’s relevant works, see here and here), I focused more on AED itself from a broader, comparative perspective.

1.      Do both approaches genuinely share one anchor, that is, do the paragraph (4) obligations rest on abuse of economic dependence, or on gatekeeper status alone?

2.      Does the general and digital-specific division correctly capture the scope of paragraphs (1) to (3) against paragraph (4)?

3.      What parameters must the paragraph (5) regulation embed so that designation genuinely justifies the presumption of harm, and how should they be calibrated to African markets?

4.      Should designation be rebuttable, and should the per se prohibitions be conclusive at the conduct stage?

5.      What is the right relationship between Article 11 and the abuse of dominance under Article 9?

Below, I group the five questions into three broader themes and set out my thoughts on each.

Discussion

The role of AED in digital and non-digital environments (Q1–2)

Questions 1 and 2, taken together, essentially address the role of AED across both digital and non-digital contexts, by asking about the relationship between paragraphs (1) to (3) and paragraph (4). On this point, I think it is worth sharing a few observations from my previous research on AED/ASBP as a competition law tool. This serves to remind us that AED is not specific to digital markets and has a long history in offline markets.

In my study recently published in the Journal of Antitrust Enforcement, I conducted a comparative study across 34 jurisdictions to map the adoption and use of standalone AED, ASBP, and broadly equivalent rules, and found that 13 of these jurisdictions have incorporated such provisions into their competition law frameworks.

From the study, what I found particularly interesting was that, although these rules often share significant commonalities across jurisdictions—such as not requiring dominance, emphasizing both the absence of feasible alternatives and the importance of the trading relationship to the dependent undertaking in establishing dependence, and in several systems, placing considerable weight on direct exploitation—the underlying policy rationales, contexts, and objectives vary.

Among these different contexts, the most traditional has been the prevention of exploitative conduct in distribution, retail, or subcontracting relationships. This is evident from the fact that French and German enforcement has addressed abuses in the distribution sector (see eg Apple and EDEKA). In Italy, moreover, the very statute in which the AED provision is located is a subcontracting law (“Disciplina della subfornitura nelle attività produttive”). This is, of course, not unique to Europe. Japan has specific guidelines addressing ASBP in the large-scale retail sector. Furthermore, to tackle dependence abuses in large-scale retail transactions, Korea has even enacted a dedicated, stringent statute, derived from its general ASBP framework. Both countries have also long maintained and rigorously enforced dedicated regulatory regimes (see Japan and Korea) to police ASBP in subcontracting relationships (for the general ASBP provisions in Japanese and Korean competition law, see Lee 2025, p 10).

Also, one point that should not be overlooked is that my research identified Japan as the earliest jurisdiction in my survey to introduce ASBP into competition law. Against the background of its dual economic structure, Japan introduced the ASBP concept in 1953 as a form of unfair trade practice. This ‘dual structure’ refers to a broader economic issue that goes beyond subcontracting: an economy sharply polarized between a small number of modern large corporations and a large number of pre-modern SMEs with substantial disparities in productivity and wages (see eg Wakui 2018, pp 15–16; OECD 2013, p 149). Notably, Korea’s economy also developed under a broadly similar economic structure (see eg OECD 2018, ch 2; OECD 2022, ch 3).

Compared to these traditional contexts, the link between AED and digital markets is a relatively recent phenomenon.

As is well known, several recent AED reforms have been motivated, at least in part, by concerns over abusive conduct in digital markets. For example, when Belgium’s rule was enacted in 2019 (although its scope is not limited to digital markets), Dr. Jacques Steenbergen, then President of the Belgian Competition Authority, reportedly indicated that investigations into platform abuses in other jurisdictions had helped convince him of the need for such a rule. Also, Section 20(1a) of Germany’s Competition Act (GWB) concerning data-access dependence and the amendment to Article 9 of Italy’s Subcontracting Law are relevant examples. Of course, Article 11(4) of the AfCFTA Competition Policy Protocol is another explicit manifestation of this trend.

Turning to the question of the relationship between paragraphs (1) to (3) and paragraph (4), I am certainly not in a position to offer a reliable interpretation of the relationship, and this is ultimately a question to be resolved within Africa’s specific context.

What I would nevertheless like to emphasize, drawn from my comparative research, is that the AED prohibition as a competition law tool has a history that long predates the digital economy (to say nothing of its even deeper roots in sectoral regulation or contract law) and in several jurisdictions, it has served as an important instrument in governing distribution and subcontracting.

From this vantage point, my tentative view is that, if digital AED is indeed to be subjected to a distinctly more stringent regime than general AED, as appears to be the case under Article 11(4), there must be a compelling and well-calibrated justification for doing so.

Stricter treatment of digital AED (Q3–4)

If Questions 3 and 4 are read together and viewed from a more general, broader perspective, I think they may boil down to the question I raised earlier: what is the compelling justification for effectively blacklisting certain forms of digital AED under Article 11(4)?

The answer will largely depend on the legal, social, cultural, and economic environment of the relevant jurisdiction, meaning there is likely no universal answer. As I briefly mentioned in relation to Korea and Japan above, both countries have layered more stringent, sector-specific regimes onto general ASBP rules for subcontracting and retail distribution, and this may be closely connected to their historical development under state-led growth strategies centered on a relatively small number of large conglomerates. Judging these stringent ASBP frameworks in isolation from these jurisdictions’ local contexts would yield at best an incomplete critique.

Turning to Article 11, to reiterate, I am not in a position to speak to the specific policy imperatives driving the African Union to treat digital AED particularly strictly (as for the characteristics of the African digital market in the context of competition regulation, see Kigwiru and Georgieva 2026, pp 138-142). All I can add from a comparative angle is the Italian experience, which may help enrich the discussion.

As I briefly mentioned earlier, Italy has addressed AED under Article 9 of its Subcontracting Law and, as I understand the case law, the provision is not confined to subcontracting relationships, but is applicable more generally (see Lee 2026, fn 44). Structurally, paragraphs (1) and (2) of the article prohibit abuse of economic dependence; paragraph (3) renders agreements involving such abuse null and void; and paragraph (3-bis) allows intervention by the competition authority where the abuse has implications for competition and the market. In 2022, Italy amended this framework. Paragraph (1) was amended to introduce a rebuttable statutory presumption of economic dependence where an undertaking relies on intermediation services provided by a digital platform that plays a pivotal role in reaching end users or suppliers. Paragraph (2) was likewise supplemented with non-exhaustive examples of abusive conduct by such digital platforms, thereby facilitating enforcement.

Unfortunately, I do not know in detail what specific legislative considerations led to this amendment. However, in the 2024 Meta–SIAE interim-measures litigation, the Italian Consiglio di Stato annulled the competition authority’s interim measures, finding insufficient evidential support for its reliance on the statutory presumption that SIAE was economically dependent on Meta. The court reasoned, among other things, that Meta’s Audio Library was not a music-streaming service, but rather a mere archive enabling users to incorporate music into their videos or reels. And the archive was not the sole channel for reaching final users (the case was closed in May 2025 with commitments from Meta; see OECD 2026, para 22). For present purposes, I read this ruling as underscoring the need to establish the platform’s decisive role in reaching users and as showing that moving further to special treatment, such as statutory presumptions or categorical ex ante prohibitions, requires a stronger justification.

My tentative view, therefore, is that the designation criteria under Article 11(5) ought to incorporate structural characteristics far more explicitly than would be required under general AED rules. As a matter of policy, and speaking as an external observer, I am inclined to think that establishing gatekeeping or core platform status under Article 11(5) should require an entrenched and durable (Article 1(l)) ‘dominant’ position as well, though whether the current text of the Protocol allows for such an interpretation remains unclear to me.

As for the conduct strictly prohibited under Article 11(4), I find that some of these practices resemble conduct that has prompted digital AED concerns in other jurisdictions. Therefore, vigilance against these practices seems unproblematic in itself.

Consider, for instance, the price parity clause set out as the first prohibited practice under Article 11(4). A representative example from Korea that I frequently reference is the Delivery Hero (Yogiyo) case. The dispute centered on a price-parity obligation imposed by Delivery Hero Korea, which operated the country’s second-largest food delivery platform at the time. In 2020, the Korea Fair Trade Commission (KFTC) sanctioned the practice under its general ASBP rules. The factual matrix was straightforward: with an approximately 20–30 per cent market share (by revenue), the platform operator prohibited restaurants from offering lower prices on other channels or via direct orders under its ‘lowest-price-guarantee program’. The market leader, Woowa Brothers (Baedal Minjok), holding 55–65 per cent market share, did not impose such a parity requirement.

While there were legal reasons why the KFTC framed the case as unilateral ASBP rather than a vertical restraint, I will not delve into those details here. Instead, let me focus on how the KFTC established a superior bargaining position. In the decision, four factors were particularly relevant: (1) the parties were in a continuing trading relationship; (2) given the tendency of consumers to single-home and restaurants to multi-home, a number of restaurants relied on the second-largest platform for a significant portion of their delivery sales; (3) there was a lack of sufficient alternatives; and (4) there was a significant difference in business capabilities between the platform and the restaurants.

Regarding abuse, the authority relied primarily on three grounds: (1) the practice restricted the restaurants’ freedom to set prices; (2) it violated the beneficiary-pays principle by effectively foisting the costs of implementing the program onto the restaurants; and (3) the practice was neither indispensable to providing the platform service nor an established custom in the industry. As noted, the leading app operator did not adopt such a price parity program. The KFTC’s infringement decision is currently under review by the Seoul High Court (in the separate criminal proceedings, acquittals at first instance and on appeal were upheld by the Supreme Court).

This case illustrates the use of ASBP rules to address a concern reflected in Article 11(4), and it is true that other listed practices have attracted scrutiny under competition law and digital regulation.

However, must they necessarily be subject to ex ante prohibitions?

There is a fundamental distinction between asking whether practices of this kind warrant scrutiny under AED or ASBP rules and asking whether the risks of anticompetitive harm they pose are sufficiently foreseeable and serious to justify replacing an ex post assessment with strict ex ante prohibitions. From a general competition law standpoint, my answer to that latter question would likely be sceptical, if not negative, whereas the answer to the first question would certainly be positive. In the Korean Delivery Hero (Yogiyo) case mentioned above, for instance, the price parity clause imposed by the second-largest player might have functioned as a pro-competitive tool to counter the market leader. And tackling it as a restriction on smaller restaurants’ pricing autonomy might have inadvertently entrenched the leading incumbent’s dominant position. An ex post enforcement framework allows for these nuances to be weighed, and these are dimensions that a reviewing court could consider (for the record, the KFTC examined, but ultimately rejected, the pro-competitive effects claim; see its decision, paras 61–62). This underscores the need to reconsider whether addressing digital AED through the outright prohibitions of a digital AED regime, as under Article 11(4), is truly appropriate.

Of course, the ultimate policy balance must be calibrated to the specific market realities and institutional context of the AU.

Relationship with abuse of dominance (Q5)

The last point of discussion is, in fact, a critically important, fundamental issue. As is well known, situations of dependency and bargaining asymmetries inherently arise across virtually all commercial and contractual relationships. If all these situational imbalances could be resolved through competition law enforcement—particularly via public enforcement—then, taken to its logical extreme, AED could effectively swallow or displace the abuse of dominance framework entirely.

Conceptually, the two frameworks may be complementary and offer a more integrated approach by addressing different dimensions of power. They are, in a sense, two sides of the same coin. Whereas dominance captures a more objective and measurable degree of capacity arising mainly from horizontal competitive relations (the "power to" act independently), dependence captures a more qualitative and relational dimension of influence arising in vertical relationships (the "power over" another party). In this sense, AED can ideally be understood as a complementary tool that may complete the traditional competition law analysis centered on structural market power.

While it is easy to accept this complementary relationship conceptually, translating this theoretical complementarity into practice is far more challenging. As noted earlier, the very concept of dependency carries a significant risk of over-expansion. Depending on how broadly it is interpreted, it risks drawing virtually any contractual dispute into the realm of competition violations, without adequately considering harm to competition or effects on efficiency, innovation, and consumer welfare. If AED is deployed in such an unconstrained manner, competition authorities may have little incentive to rely on the more demanding abuse of dominance framework.

The standards developed under abuse-of-dominance law are valuable. They serve, in principle, as critical safeguards against over-enforcement, ensuring that vigorous, pro-competitive conduct can continue without unnecessary or arbitrary intervention, or intervention distorted by regulatory capture. While certain reservations may arise depending on each jurisdiction's market maturity, level of economic development, and the accumulation of specialized expertise within its enforcement and judicial systems, as a general rule, AED should not serve as an easy backdoor to bypass those existing foundational standards.

Designing and implementing a genuinely complementary and balanced relationship between the two frameworks, dominance and dependence, is essential, but this is certainly a challenging task given the inherent elasticity and risk of over-expansion associated with the concept of dependence itself. This is all the more so when, as currently framed in the Protocol, AED enables authorities to address digital platform abuses more readily through designations and ex ante prohibitions under Article 11(4) and (5).

I hope that, through future interpretation and elaboration, Article 11 and Article 9 can develop in a way that preserves that balance.

Acknowledgment

The author is a Global Research Program Fellow of the National Research Foundation of Korea and acknowledges the support of JSPS KAKENHI Grant Number JP24H00013.