a tripartite report - Unctad

ZIMBABWE
divided according to geographical area, class
of consumer or otherwise; or
(c) to limit, by number or quantity, the commodities
or services produced or distributed.
The provision shall not apply to an agreement, arrangement
or understanding:
(a) between companies which are all part of a
single group of companies; or
standards of quality or service in regard to the
production or distribution of the commodity
or service concerned.
In examining the issues provided in 2.2.2.1 through
to 2.2.2.6, it is imperative to assert that distribution
of commodities or services above advertised
price can be construed as one form of misleading
advertising hence are actually one and the same
issue.
That notwithstanding, issues of misleading advertising,
false bargain and selling above advertised
prices are commonly referred to as Fair Competition
issues. They are done unilaterally thus deviating
from the root of qualifying from being agreements
let alone being per se prohibited.
These issues are not among core competition issues
commonly addressed by competition legislations.
Jurisdictions treat them differently, some
refer to them as part of consumer protection (as
may be the case for Zimbabwe), other jurisdictions
refer to them as Fair Competition issues and are
dealt with under a different legislation.
The provisions in undue refusal to distribute commodities
or services in so far as they refer to collective
boycott and bid rigging are well placed to
be prohibited Per Se. Equally rightly placed are
the provision referring to ‘’Collusive Arrangements
between Competitors’’ which covers under (a), the
Competitors and (c) Output Restriction.
2.1.2.7 Predatory Pricing, Retail Price
Maintenance and Exclusive
Dealing
These are typical abuse of dominance issues
whose determination procedures are distinct from
those invoked in dealing with Per Se prohibited
agreements. Logically subjecting the issues under
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Per Se approach poses a potential for confusion to
users of the ZCA.
2.2 Abuse of Dominance
The ZCA does not contain a general prohibition
of the abuse of dominance. Section 2 contains a
market control as shall be provided later in this
report. Section 31 (2) allows the CTC to declare a
is contrary to the public interest on individual case
to case basis as earlier reported.
This is different as compared to prohibition such as
that in the Tanzanian law Section 10 (1) “A person
with a dominant position in a market shall not use
his position of dominance if the object, effect or likely
effect of the conduct is to appreciably prevent, restrict
or distort competition” or that of the Zambian
law Section 16 (1) “An enterprise shall refrain from
any act or conduct if, through abuse or acquisition
of a dominant position of market power, the act or
conduct limits access to markets or otherwise unduly
restrains competition, or has or is likely to have
adverse effect on trade or the economy in general”.
ation
in which a single person exercises, or two
or more persons with a substantial economic connection
exercises, substantial market control over
any commodity or service;
as a situation:
(a) Being a producer or distributor of the commodity
or service, he has the power, either by himself
or in concert with other persons with whom
he has a substantial economic connection,
commodity or service above competitive levels
for a substantial time within Zimbabwe or any
substantial part of Zimbabwe”.
(b) Being a producer or distributor of the
commodity or service, he has the power,
either by himself or in concert with other
persons with whom he has a substantial
maintain the price of commodity or service
below competitive levels for a substantial time
within Zimbabwe or any substantial part of
Zimbabwe”.
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