a tripartite report - Unctad
a tripartite report - Unctad
a tripartite report - Unctad
Create successful ePaper yourself
Turn your PDF publications into a flip-book with our unique Google optimized e-Paper software.
ZAMBIA<br />
ing practices, and unfair contract terms, as well as<br />
extends the Commission’s undertaking of studies<br />
to matters of concern to consumers. While these<br />
functions were implied in the old, and the ZCC had<br />
always performed them, the functions now have<br />
legal legitimacy under the new Act. The added<br />
function of acting as the primary advocate for<br />
competition and effective consumer protection in<br />
Zambia strengthens the Commission’s jurisdiction<br />
on competition and consumer protection matters<br />
over other sector regulators and consumer associations.<br />
The function of advising government on<br />
laws affecting competition and consumer protection,<br />
and on agreements relevant to competition<br />
and consumer protection should go a long way<br />
in making the government take cognizance of the<br />
decisions and recommendations of the Commission,<br />
which was one of the problems and constraints<br />
that the Commission faced in the implementation<br />
of the country’s competition policy and<br />
<br />
the ZCC’s competition practitioners.<br />
The added function of liaising and exchanging information,<br />
knowledge and expertise with competition<br />
and consumer protection authorities in other<br />
countries gives the Commission the necessary<br />
mandate and legal powers of entering into cooperation<br />
agreements and arrangements with other<br />
competition authorities on a bilateral, regional or<br />
multilateral level.<br />
The concept of public interest has been introduced<br />
in the new Act, particularly in the examination and<br />
determination of mergers. The public interest issues<br />
are clearly outlined in the Act, and include<br />
the promotion of exports and employment, and<br />
the protection of micro and small business enterprises.<br />
This recognizes the fact that competition<br />
policy in developing countries should be implemented<br />
in coherence with the country’s other<br />
socio-economic policies for effective economic<br />
development.<br />
On the whole, the new Competition and Consumer<br />
Protection Act, 2010 of Zambia is very comprehensive,<br />
the fact that was recognized by virtually<br />
all the stakeholders that were interviewed during<br />
<br />
16 – 23 October 2011 127 , with high expectations<br />
that the implementation of competition policy and<br />
law in the country will be much improved than before.<br />
The general observation was however that<br />
111<br />
the Act focuses more on consumer protection<br />
than on purely competition issues.<br />
2.2 Application and Exemptions<br />
The UNCTAD Model Law on Competition, in giving<br />
guidance for best practices in competition law<br />
design, suggests that the law should have general<br />
applicability, i.e., that it should apply to all industries,<br />
agreements and entities engaged in the<br />
commercial exchange of goods and services. The<br />
rationale being that enterprises engaged in the<br />
same or similar business activities should be subject<br />
to the same set of legal rules and standards to<br />
ensure fairness, equality and non-discriminatory<br />
treatment under competition law.<br />
However, reality, and practice, dictates that some<br />
exemptions and exclusions should be granted in<br />
competition law for social, economic, and political<br />
reasons. Care should however be taken in granting<br />
blanket exemptions and exclusions that certain<br />
economic sectors are not completely exempted,<br />
thus giving them legal licences to engage in anticompetitive<br />
practices.<br />
The Competition and Consumer Protection Act,<br />
2010 of Zambia expressly provides under section<br />
3(1) that the Act “… applies to all economic activity<br />
within, or having an effect within, Zambia”. These<br />
vided<br />
for, but implied, in the old Competition and<br />
Fair Trading Act, 1994, which only provided for the<br />
exemptions and exclusions from the application of<br />
the Act. The provisions are important and crucial,<br />
particularly in merger control, since they empower<br />
the Commission to examine the competitive effects<br />
in Zambia of transactions concluded and<br />
entered into elsewhere. The Act in terms of section<br />
3(2) also “binds the State insofar as the State<br />
or an enterprise owned, wholly or in part, by the<br />
State engages in trade or business for the production,<br />
supply, or distribution of goods or the provision<br />
of any service within a market that is open to<br />
participation by other enterprises”. Thus, there are<br />
no ‘sacred cows’ and the Commission can enforce<br />
competition law on State enterprises, or parastatal<br />
organizations, that engage in commercial activities<br />
in competition with private companies.<br />
Even though it is not expressly stated in the Act,<br />
it is implied that the Act does not apply to the<br />
ZAMBIA