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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(billboards) from the road reserve within 30 days counted from 1 August 2009 and that their advertising permits had been revoked.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
44 VOLUNTARY PEER REVIEW OF CLP: A TRIPARTITE REPORT ON THE UNITED REPUBLIC OF TANZANIA – ZAMBIA – ZIMBABWE the United Republic of Tanzania. Under Section 20 of the EWURA Act, EWURA has powers under subheading of “Competition policy and contraventions of competition legislation”, that in carrying out its functions and exercising its powers under this Act, and under sector legislation in relation to particular markets for regulated services, the Authority shall take into account: (a) whether the conditions for effective competition exist in the market; (b) whether any exercise by the Authority is likely to cause any lessening of competition or additional costs in the market and is likely to be detrimental to the public; (c) whether any such detriment to the public are resulting from the exercise of the powers. EWURA is mandated38 , following the foregoing process, to deal with all competition issues which may arise in the course of the discharge of its functions, and may investigate and <strong>report</strong> on those issues, making appropriate recommendations to the Tanzania Bureau of Standards, the FCC or any other relevant authority in relation to – (a) any contravention of the Fair Competition Act, the Standards Act or any other written law; (b) actual or potential competition in any market or regulated services; and (c) any detriment likely to result to the members of the public. The law does not provide any extensive provisions apart from the foregoing on how EWURA would deal with the competition matters. In the meetings held with EWURA, they admitted that they did not have any staff guidelines on how to deal with competition matters. There is also no compulsion to refer a competition matter to or for consultation with the FCC before the determination. As the law is currently couched, EWURA would have to to the FCC after the investigation. There appears to be a policy shift for laws that were enacted after 2003. Under section 32(2) of the Electricity Act of 2008, it states that “the Authority shall consult the Fair Competition Commission in any investigation into anticompetitive behaviour”. The understanding here is that EWURA may consult FCC but FCC does not have any overriding powers over EWU- RA’s decision to reject the FCC’s advice. Where the FCC is not content that the competition issues have been addressed, FCC’s recourse is to refer the matter to the Minister for intervention as provided for under Section 96(4) of the FCA. The role of the FCC in competition matters in the regulated sectors is merely advisory in relation to anticompetitive decisions the regulators effect. It is thus not clear whether the FCC would enforce the FCA against a player in the petroleum sector such as BP, Caltex, etc when these engage in conduct that has not been sanctioned by the sector regula- lective boycott. According to an informed opinion, such action may be possible under section 96(3) of the FCA and section 24 of the Petroleum Act discussed below. The Petroleum Act of 2008 administered by EWU- RA has a PART IV dealing with “Assurance of Fair Competition”. Section 24 of the Petroleum Act of 2008 states that subject to the provisions of the EWURA Act, all petroleum operations shall be subject to the provisions of the FCA in relation to: (a) the formation of cartels (b) barriers to entry and exit (c) abuse of dominant position and market power (d) formation of mergers and acquisitions for anticompetitive purposes (e) attempts to control prices or services; and in that Act, with intention to contravene the principles of a free market for petroleum products within the country. Section 24(3) of the said Petroleum Act is clear that the FCC shall monitor conditions of the market and trade practices of participants in the supply chain. It is not clear whether the FCC only has a “monitoring” role and not necessarily an “enforcement” role. Under Section 5 of the TCRA Act of 2003, it is provided that it shall be the duty of TCRA that in carrying out its functions it shall strive to enhance the welfare of the society of the United Republic of Tanzania by:
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ZIMBABWE FULL REPORT ZIMBABWE
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ZIMBABWE TABLE OF CONTENTS PREFACE
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ZIMBABWE This report is part of the
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ZIMBABWE With the growing political
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ZIMBABWE of restrictive practices,
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ZIMBABWE competition authorities do
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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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