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ZAMBIA investigation ultimately clears the enterprises from the alleged anticompetitive practices. Such orders must therefore be made on very good ground, It is recommended that the Commission in giving directions on staying or prohibition orders under section 62(1) of the validity of the orders. This should be provided for in a Statutory Instrument, with the following suggested wording: “A staying order in terms of section 62(1) of the Act shall remain in force: (a) until completion of the Commission’s investigation into the matter concerned; or (b) for a period of six months from the date of its publication; whichever is the shorter period”. Table 1: Remedies in Merger Control In Case of Prospective Mergers (Section 62(2)) In Case of Completed Mergers (Section 62(3)) The Commission may, in the case of a prospective merger, require an enterprise to: • desist from completion or implementation of the merger insofar as it relates to a market in Zambia; • merger can be completed or implemented; or • adopt, or desist from, such conduct, including conduct condition of proceeding with the merger. Remedies in merger control under the Act are therefore both of a structural and behavioural nature. 154 While both forms of remedies are effective in redressing competition concerns, structural remedies are generally preferred to behavioural ones, mainly because they are felt to be more effective in the long run, and do not require continuing oversight or regulation by competition authorities. In requiring continuing oversight by competition authorities, behavioural remedies place a heavy burden on the resources of the authorities, which are scarce in developing countries like Zambia. Structural remedies have been found to be most effective in merger control, particularly in remedying the competitive effects of horizontal mergers. In the case of restrictive business and anticompetitive trade practices (i.e., anticompetitive agree- 133 Sections 58 and 59 of the Act provide for Commission directions relating to restrictive agreements (of both horizontal and vertical nature), and relating to distortion, prevention or restriction of competition (i.e., abuse of dominance). The directions may be in the form of written orders and may include requirements that the enterprise to which they are given should: (a) terminate or amend an agreement; (b) cease or amend a practice or course of conduct, including conduct in relation to prices; (c) supply goods or services, or grant access to facilities; (d) separate or divest itself of any enterprise or assets; or (e) provide the Commission with Section 61 provides for remedies in merger control. The remedies are in the case of both prospective mergers and completed mergers that have been found to result in a substantial lessening of competition. These are listed in Table 1 below. The Commission may, in the case of a completed merger, require an enterprise to: • • adopt, or to desist from, such conduct, including conduct condition of maintaining or proceeding with the merger. ments and abuse of dominant position), both structural and behavioural remedies are also provided under the Act. While structural remedies have been found to be effective in merger control, they have been found not to be suitable in redressing certain other competition concerns. For example, while structural remedies have been applied on abuse of dominance 155 , they may not be the most suitable for such anticompetitive practices. It has generally been accepted that being dominant per se is not being anticompetitive, but it is the abuse of that dominance through the engagement of exclusionary and exploitative practices which is cause for competition concern. This is the reason why most competition authorities consider abuse of dominance using the rule-of-reason approach ZAMBIA
134 VOLUNTARY PEER REVIEW OF CLP: A TRIPARTITE REPORT ON THE UNITED REPUBLIC OF TANZANIA – ZAMBIA – ZIMBABWE against the anticompetitive elements. The same applies to vertical restraints. Therefore, the break- economies of scale, or the elimination of vertical restraint agreements or arrangements that serve could therefore be an extreme form of remedy. It must be noted that care must be taken to avoid imposing greater costs than those incurred by the anticompetitive conduct. Restitution and payment of damages are also generally considered to be appropriate remedies in abuse cases. Section 65 of the Act provides for enforcement of competition law by the Commission at the request of foreign competition authorities, and for positive comity. Section 65(1) provides that “a foreign competition authority may, where it has reasonable grounds to believe that anticompetitive practices in Zambia are damaging competition in the country of the authority, request the Commission to investigate and make an appropriate determi- from other members of COMESA and/or SADC by virtue of the obligations that Zambia has assumed towards these regional organizations. It also ap- in the Gazette, that Zambia has entered into an agreement with one or more States or organizations whereby, on a basis of reciprocity, each party to the agreement shall exercise the principle of comity … in investigating and determining cases falling within its jurisdiction”. The above provisions greatly facilitate Zambia’s cooperation with other countries in the effective implementation of competition policy and law, both regionally and internationally. The provisions of section 66 of the Act also greatly facilitate the effective implementation of competition policy and law in Zambia. They provide that “the Minister may, by statutory instrument, on the recommendation of the Commission, make regulations to provide for the manner in which investigations under this Part shall be carried out”. The importance of the provisions is that they enable the Commission to lay out in more detail, which can be subjected to frequent changes and amendments, pertinent matters pertaining to procedural issues. As has already been stated earlier, the main regulations to the Act, the Competition and Consumer Protection (General) Regulations, 2011, were gazetted on 19 August 2011 as Statutory Instrument No.97 of 2011. The regulations cover the following areas: (i) determination of relevant product market; (ii) market inquiry process; (iii) application for authorization of horizontal or vertical agreement, and application for exemption; (iv) threshold for authorization of proposed merger, and application for negative clearance; (v) authorization of investigations, notice of investigation, unannounced raid on premises, form of consent agreement, undertakings, and investigation at request of foreign competition authority; (vi) lodging of complaints; and (vii) service of documents on Commission, service of documents on person other than Commission, service of notice by Commission, Inspectors, and fees. 2.5 Sanctions One of the major shortcomings of the old Act that Competition Commission (ZCC) was the inadequacy of sanctions under that Act which did not deter would-be offenders. The new Act has recti- of various sanctions, of both administrative and criminal nature. Administrative sanctions are imposed by the Commission, while criminal sanctions can only be imposed by law courts. The most deterrent administrative sanction is the fending enterprise’s annual turnover. This sanction is imposed for a number of offences, including the following: (i) entering into or giving effect to per se prohibited agreements (in breach of sections 9(1) and 10(1) of the Act); (ii) abusing a position of dominance (in breach of section 16(1) of the Act); (iii) not complying with a condition of an exemption (section 21(3)); (iii) offences relating to mergers (i.e.,: implementing a reviewable merger without the approval of the Commission, implementing a merger that has been rejected by the Commission, or (iv) failing to comply with merger approval conditions) (section 37); and (v) certain offences relating to consumer protection (e.g., engaging in unfair trading practices, false or misleading representations, display of disclaimers, supply of defective and unsuitable goods and services,
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UNITED NATIONS CONFERENCE ON TRADE
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UNITUNITED NATIONS CONFERENCE ON TR
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2 VOLUNTARY PEER REVIEW OF CLP: A T
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COMPARATIVE ASSESMENT COMPARATIVE A
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PREFACE This comparative assessment
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PREFACE agreements. . In the United
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PREFACE Finally in the United Repub
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PREFACE be set at a percentage of t
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PREFACE the market price but constr
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PREFACE (d) the extent to which the
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PREFACE pendence is maintained and
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PREFACE the effectiveness of the or
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PREFACE practical solutions, for ex
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PREFACE In addition to formal coope
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Page 176 and 177: ZIMBABWE TABLE OF CONTENTS PREFACE
Page 178 and 179: ZIMBABWE This report is part of the
Page 180 and 181: ZIMBABWE With the growing political
Page 182 and 183: ZIMBABWE of restrictive practices,
Page 184 and 185: ZIMBABWE competition authorities do
Page 186 and 187: ZIMBABWE divided according to geogr
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ZIMBABWE The Commission in 2006 whi
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ZIMBABWE to take care of themselves
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ZIMBABWE (under Section 9); basical
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ZIMBABWE Full scale investigation i
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ZIMBABWE (ii) to produce any book,
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ZIMBABWE The fact that CTC has a co
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ZIMBABWE tariat of technocrats, who
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ZIMBABWE Table 2: Number of Competi
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ZIMBABWE Regarding the handling of
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ZIMBABWE (Emphasis by the author) b
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ZIMBABWE Section 5 (1) (f) that pro
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ZIMBABWE Whilst the arguments can b
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ZIMBABWE Anti competitive agreement
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ZIMBABWE by conducting its case det
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