On February 4, 2025, the First Instance Division (FID) of the COMESA Court of Justice (CCJ) delivered a significant ruling regarding safeguard measures under the Common Market for Eastern and Southern Africa (COMESA) Treaty. The case, Agiliss Ltd v The Republic of Mauritius, involved a dispute over the legality of safeguard measures imposed by the Government of Mauritius on edible oils imported from other COMESA Member States. This landmark decision underscores the critical role that the COMESA Court of Justice plays in ensuring that trade remedies are applied in a fair and lawful manner, and serves as a precedent for future trade disputes within the region.
In 2018, the Government of Mauritius, citing a surge in imports of edible oils, invoked Article 61 of the COMESA Treaty to impose a 10% customs duty on imports of pre-packaged edible oils from other COMESA Member States, including Egypt. The safeguard measure was intended to protect the domestic edible oil industry. However, Agiliss Ltd, a Mauritian company importing edible oils from Egypt, contested the measure, arguing that the Government of Mauritius had failed to notify the COMESA Secretariat and other Member States about the imposition of the safeguard measure. Furthermore, Agiliss Ltd claimed that the process lacked transparency and proper consultation with stakeholders.
Agiliss Ltd’s initial efforts to resolve the issue through direct discussions with the Government of Mauritius proved unsuccessful. Consequently, the company filed a Reference before the COMESA Court of Justice, challenging the legality of the safeguard measure and seeking an order prohibiting the imposition of any customs duties or non-tariff barriers on the import of edible oils from COMESA Member States.
The case had initially been dismissed by the FID on the grounds that Agiliss Ltd had not exhausted local remedies in Mauritius, as stipulated by Article 26 of the COMESA Treaty. However, the Appellate Division (AD) of the COMESA Court of Justice overturned this decision, ruling that there were exceptional circumstances that justified Agiliss Ltd’s direct appeal to the court, despite the lack of local remedies. This paved the way for the FID to reconsider the merits of the case.
In its February 2025 ruling, the FID found that the Government of Mauritius had violated several key provisions of the COMESA Treaty and the COMESA Regulations on Trade Remedy Measures, 2002. Specifically, the court highlighted the failure to conduct a proper investigation into the surge in imports and the lack of consultation with stakeholders before the imposition of the safeguard measure. The court also noted the government’s failure to notify the COMESA Secretary-General and other Member States about the safeguard measure, which is required under the Treaty and Regulations.
The court emphasized that the imposition of safeguard measures must adhere to strict procedural requirements, including proper investigation, consultation, and notification. It ruled that the Government of Mauritius had breached these requirements and declared the decision to impose the safeguard measure, as well as all subsequent actions taken in connection with it, to be null and void. The court further ordered the government to refrain from implementing the safeguard measure and directed it to bear half of the costs associated with the case.
This ruling sets an important precedent in the application of safeguard measures within COMESA and reinforces the importance of compliance with trade rules and regulations. It also highlights the role of the COMESA Court of Justice in ensuring that Member States adhere to the principles of transparency, fairness, and good governance in the application of trade remedies. The case serves as a reminder to COMESA Member States that while safeguard measures are legitimate tools for protecting domestic industries, their use must be justified and transparent, with due regard for the rights of other Member States and businesses.
