Competition Commission of Namibia found to have jurisdiction over medical aid funds
29 Mar 2016
On 17 March 2016, the High Court of Namibia dismissed an application by nine medical aid funds and the Namibian Association of Medical Aid Funds (NAMAF) to grant orders against the Namibian Competition Commission (NaCC) and the Namibian Private Practitioners Fund that the applicants are exempt from the provisions of the Competition Act, 2003.
The application which was dismissed with costs, followed a finding by the NaCC in 2014 that the applicants had fixed prices by setting benchmark tariffs in contravention of section 23 of the Competition Act. The main points were:
- contrary to what the applicants argued, the High Court found that they are all undertakings (and, in NAMAF’s case, an association of undertakings) within the meaning of section 1 of the Competition Act, because they operate businesses for gain. The Court found that a “business” in the context of the Competition Act, being a commercial activity involving the exchange of goods and services for payment on a large scale, corresponded to the meaning of “fund” in the context of the Medical Aid Funds Act, 1995. The Court also found that “gain” is a concept wider than “profit” and includes a commercial or material benefit or advantage;
- the applicants are not exempt from the Competition Act because the Competition Act itself does not exempt the applicants; and
- section 10(3) of the Medical Aid Funds Act, requiring NAMAF to control, promote, encourage and coordinate the establishment and functioning of funds in Namibia, does not contemplate unlawful activities, like cartel conduct, in pursuance of its mandate.