The First Instance Division (FID) of the COMESA Court of Justice (CCJ) recently delivered a significant ruling in a case involving the use of safeguard measures within the Common Market for Eastern and Southern Africa (COMESA). The case, Agiliss Ltd v The Republic of Mauritius and others (Reference No. 1 of 2019), sets an important precedent for trade disputes in the region.
Safeguard measures are a vital trade remedy tool designed to protect domestic industries from sudden surges in imports. However, these measures must be used judiciously, ensuring they are not merely disguised as trade barriers. The Agiliss Ltd case demonstrates the importance of this balance and the need for transparency and fairness in their implementation.
Agiliss Ltd, a company based in Mauritius, imports basic commodities, including pre-packaged edible oils, from Egypt, a fellow COMESA member state. In 2018, the Government of Mauritius invoked Article 61 of the COMESA Treaty, which allows for safeguard measures in cases where imports threaten domestic industries. The government imposed a 10% customs duty on imported edible oils, citing a surge in imports as a threat to the local edible oil industry.
The decision to impose the safeguard measure was not communicated to Agiliss Ltd, and the company sought to engage in discussions with the government, but without success. Aggrieved by this lack of communication and the unilateral decision, Agiliss Ltd filed a complaint with the COMESA Court of Justice. The company challenged the legality of the safeguard measure and requested the Court to prohibit Mauritius from imposing any customs duties or non-tariff barriers on edible oil imports from other COMESA member states.
The case had previously been remitted to the FID by the Appellate Division (AD) of the COMESA Court of Justice. The AD had overturned an earlier FID decision, which had dismissed the case on the grounds that Agiliss Ltd had not exhausted local remedies, as required under Article 26 of the COMESA Treaty. The AD ruled that exceptional circumstances in Mauritius justified Agiliss Ltd’s failure to exhaust local remedies before filing the case.
On 4th February 2025, the FID ruled in favor of Agiliss Ltd. The Court found that the Government of Mauritius had violated both the COMESA Treaty and the COMESA Regulations on Trade Remedy Measures, 2002. The ruling highlighted several critical violations, including the failure to conduct a proper investigation before imposing the safeguard measure, the lack of consultation with stakeholders, and the failure to meet notification obligations. The Court emphasized that the safeguard measure should have been communicated to both the COMESA Secretary-General and all COMESA member states, not just the Secretary-General.
The Court further stressed that the process of imposing safeguard measures must adhere strictly to the COMESA Treaty and Regulations from the outset. The Government of Mauritius’s failure to follow these procedures rendered the safeguard measure, and all actions taken as a result of it, null and void. Consequently, the Court ordered Mauritius to cease any implementation of the safeguard measure and to bear half of the costs associated with the case.
This landmark decision sets a critical precedent for future trade disputes within the COMESA region. It underscores the importance of transparency, stakeholder engagement, and adherence to legal procedures in the imposition of safeguard measures. The ruling also reinforces the role of the COMESA Court of Justice in upholding the rule of law and ensuring that member states comply with the terms of the COMESA Treaty and its regulations.
By establishing the importance of proper procedure and notification, this decision will likely shape the handling of similar cases in the future. It highlights the need for governments within COMESA to act in good faith, adhere to trade regulations, and respect the rights of other member states when implementing protective trade measures.
