a tripartite report - Unctad

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Bank support, the law was repealed and replaced
with the Fair Competition Act in 2003 and replaced
with a more focused Fair Competition Commission.
The Fair Competition Commission has made selfevident
strides to publicize the law but only segments
of it are known even by the educated elite.
For instance, the lawyers spoken to were more
while the consumers were more conversant with
the counterfeit functions of the Commission.
2.0 THE SCOPE AND
APPLICATION OF
COMPETITION LAW
AND POLICY
2.1 Objectives of the Tanzanian
Competition Law
In its preamble, the Fair Competition Act has it that
it is “an Act to promote effective competition in
trade and commerce, to protect consumers from
unfair and misleading market conduct…”. The Act
replicates the objects of the Act under Section 3,
which is an extension of the objects of the Act as
contained in the preamble.
According to the Ministry of Industry, Trade and
Marketing Strategic Plan document (2009–2011),
the FCC is established and expected to promote
and protect effective competition in trade and
commerce and to protect consumers from unfair
and misleading market conduct. The FCC is considered
to be a “business support organization” 32 .
The goals of the competition policy and its development
are clear that apart from the express
protection of consumers, the law does not protect
competitors but is aimed at “promoting and
protecting effective competition”. This is explicitly
echoed in the preamble to the FCA.
The distinction between competition and public
interest considerations is always debatable in developing
countries. It is not likely that a less developed
country such as the United Republic of Tanzania
will discard the public interest consideration.
There is a veiled goal in Section 8(4) for instance
whereby in an agreement that appreciably affects
competition, the Commission shall have regard to
whether:
41
Under Section 13(1)(b)(iv), the Commission may
grant an unconditional or conditional exemption
circumstances that the merger is or is likely to re-
outweigh the detriments caused by preventing,
restraining or distorting competition.
2.2 Scope of application of the law
Appropriately referred to as the “Fair Competition
Act”, the FCA has compressed parts dealing with
competition and extensive parts dealing with misleading
market conduct and consumer protection.
In terms of geographical jurisdiction, the fair competition
legislation does not apply to Zanzibar but
to mainland Tanzania, historically known as Tanganyika.
This is made manifest under Section 6(1) of
the Act, which states as follows:
(1) This Act shall apply to Mainland Tanzania,
State bodies and local Government bodies in so
far as they engage in trade 33 .
There is also extraterritorial application. This is under
Section 7 as follows:
7. This Act shall apply to conduct outside mainland
Tanzania:
(a) by a citizen of the United Republic of Tanzania
or a person ordinarily resident in the United
Republic of Tanzania;
(b) by a body corporate incorporated in the United
Republic of Tanzania or carrying on business
within the United Republic of Tanzania;
(c) by any person in relation to the supply or
acquisition of goods or services by that
person into or within the United Republic of
Tanzania; or
(d) by any person in relation to the acquisition
of shares or other assets outside the United
Republic of Tanzania resulting in the change
of control of a business, part of a business or
an asset of a business, in the United Republic
of Tanzania.
The scope of the extraterritorial application is
wide and includes both nationals, residents, nonnationals
and non-residents. However, there are
no guidelines as to how exactly a foreign national
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