a tripartite report - Unctad
a tripartite report - Unctad
a tripartite report - Unctad
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PREFACE<br />
(d) the extent to which the proposed merger shall<br />
maintain or promote exports from Zambia or<br />
employment in Zambia;<br />
(e) the extent to which the proposed merger may<br />
enhance the competitiveness, or advance<br />
or protect the interests of micro and small<br />
business enterprises in Zambia;<br />
(f) the extent to which the proposed merger<br />
may affect the ability of national industries to<br />
compete in international markets;<br />
(g) socioeconomic factors as may be appropriate;<br />
and<br />
(h) any other factor that bears upon the public<br />
interest.”<br />
Such an extensive list weakens substantially the<br />
technical approach of the Authority in the evaluation<br />
of mergers. The standard according to which<br />
mergers are evaluated should be clear and precise.<br />
This means that the standard should fully remain<br />
within a one dimensional type of measurement,<br />
i.e. the increase in market power associated<br />
with the merger. Authorities are well equipped to<br />
measure and to evaluate the effect of a merger<br />
over market power. A public interest standard<br />
introduces a multidimensional approach that requires<br />
some sort of political trade-off to be sorted<br />
out. How much exports should increase in order<br />
to more than overcome the increase in market<br />
power (prices) originating from the merger? Or<br />
how much should employment increase in order<br />
to overcome the increase in market power? These<br />
are questions that cannot be answered in a technical<br />
way. The most important point to make with respect<br />
of a public interest standard is that, while the<br />
increase in market power can be presumed with<br />
a high degree of probability, all these wider social<br />
<br />
considered in an administrative decision and, subsequently,<br />
in a Court of law. With such a long list of<br />
possible exceptions, the Authority would have to<br />
consider all sort of claims, without a clear theory<br />
to rely on in order to actually assess their validity.<br />
<br />
to prohibit even the most anticompetitive merger.<br />
The best approach would be to limit the public<br />
<br />
defences, along the lines of the United Republic of<br />
Tanzania and the Zimbabwe laws.<br />
17<br />
If the law is not changed, the Zambian Authority<br />
should interpret these public interest provisions<br />
very strictly and authorize an anticompetitive<br />
<br />
compelling and unquestionable.<br />
6. Public resources dedicated to<br />
antitrust enforcement<br />
In all three jurisdictions the antitrust Authority is a<br />
relatively small, but a multiple tasks institution. Besides<br />
antitrust enforcement, the authorities are involved<br />
with consumer protection, fair trading, plus<br />
counterfeit goods (United Republic of Tanzania),<br />
relocation of Plant and Equipment (Zambia) or<br />
Tariff issues (Zimbabwe). As a result, the amount of<br />
resources dedicated to competition law enforcement<br />
and policy is extremely limited.<br />
In Zimbabwe the Authority has a staff of 29 people<br />
out of which 16 are technical and 13 support staff.<br />
There is the Director, Secretary of the Commission<br />
tition<br />
division is led by the Assistant Director for<br />
<br />
<br />
competition. Furthermore, most of the competition<br />
staff is relatively new to the Commission; three<br />
were hired in 2007 and three in 2011. The Assistant<br />
Director for competition was hired in 2008. The<br />
only experienced competition expert is the Director<br />
who has been with the Commission since 1999.<br />
Among the operational staff, none has undergone<br />
competition training at University; internally there<br />
have not been any comprehensive in-house training<br />
of staff. At most members of staff and Commissioners<br />
have attended short trainings of 2–3 days<br />
abroad. In this area, the Authority should consider<br />
mobilising resources and organized a tailor made<br />
training aimed at addressing knowledge and skills<br />
gaps for both the Commissioners and staff.<br />
The staff of the Authority is paid civil service type<br />
salaries (provided by the Public Service Commission),<br />
which are seven times lower than those of the<br />
staff of sector regulators or of the Central Bank. As<br />
a result the Authority does not attract well trained<br />
people and such salaries do not provide the right<br />
incentive for becoming a well trained antitrust enforcer.<br />
Resources dedicated to competition have<br />
to increase substantially, with the Authority increasing<br />
the number of staff, their salary and the<br />
COMPARATIVE ASSESMENT