a tripartite report - Unctad

TANZANIA
a competition issue to be determined by the
Commission;
(ii) The respondent engaged in trade and hence
falls under the provision of section 6(1) of the
Fair Competition Act;
(iii) The respondent is a “State body” not the
“State” and therefore is not subject to the
exemption under section 6(2) of FCA;
(iv) The permits issued by the respondent have
a commercial value and do not fall under
section 6(3) (b) (ii) and (iii) of FCA;
(v) The relationship between the complainants
and the respondent is contractual as per the
provisions of section 10 of the Law of Contract
Act, Cap 345 R.E. 2002; and
(vi) Based on (v) above, the respondent is a
suitable entity as per section 3(6) (b) and (c)
of the Executive Agencies Act, Cap 245 as
amended by the Finance Act, No 18 of 2002.
Furthermore, Section 96 of the FCA clearly
provided that the FCA applies to all persons
in all sectors of the economy and shall not
other Act, except to the extent that the Act is
passed after the commencement of the FCA
any subsidiary legislation purports to exclude
or modify FCA.
-
The reason advanced by the respondent to the
complainants for issuing exclusive permits was that
the respondent intended to start a three-year pilot
scheme and, in order to monitor the pilot exercise
effectively; it had decided to identify only two lo-
all the twenty one regions of Tanzania Mainland.
operating in the business of outdoor advertising
were ordered by TANROADS to remove all installed
gantries (billboards) from the road reserve within 30
days counted from 1 August 2009 and that their
advertising permits had been revoked. The FCC annulled
the exclusive contracts.
Where the State is an active commercial player, the
43
with the private sector that are engaged in commercial
activities in e.g. the insurance, pension,
banking and telecommunications. This may be an
area that may be reviewed as it has been reviewed
through a High Court judgment in Zambia as well
as through the Zambian Competition and Consumer
Protection Act of 2003. Under Section 3 of
the Zambian Competition and Consumer Protection
Act of 2010, the Act does not apply to the State
where there is a statutory monopoly but the law
does apply where the State is engaged in commercial
activities in a sector that is open to com-
remote possibility under the Zambian competition
regime. Judge Philip Musonda of the High Court
of Zambia 36 anyhow ruled thus:
“...Sovereign States are entitled to immunity in respect
of its Governmental acts, but not in respect
of its commercial transactions. Every commercial
undertaking engaged in the provision of goods
and services is amenable to the Commission (author’s
emphasis)... In a nutshell, all commercial
undertakings are regulable by the Commission, if
such undertakings imperil consumer interests and
I see no lacuna in the law…”
2.2.2 Limitations in regulated sectors
The FCC does not have jurisdiction to deal with
competition issues in sectors where there is a
Act, four key sector regulators have the exclusive
mandate to deal with competition matters within
their jurisdictions and it is not mandatory that they
seek the counsel of the Commission. The regulators
have the discretion whether to consult with
the FCC or not. The exempted regulatory sectors
are governed by the following Acts:
(i) The Energy and Water Utilities Regulatory
Authority Act, 2001 (EWURA Act);
(ii) The Surface and Marine Transport Regulatory
Act, 2001 (SUMATRA Act);
(iii) Tanzania Civil Aviation Regulatory Authority
Act, 2003 (TCAA Act);
(iv) Tanzania Communications Regulatory
Authority Act, 2003 (TCRA Act).
EWURA administers 8 separate legislations 37 dealing
with water, petroleum and electricity matters in
TANZANIA