a tripartite report - Unctad

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mergers and acquisitions. Being a law that deals
with both competition and consumer protection
matters, the law has generous provisions dealing
with consumer protection. PARTS III – PART IX of
the FCA contain provisions on the prohibition of
misleading and deceptive conduct, unfair business
practices, unconscionable conduct, manufacturers
obligations, product safety and product recall.
In summary, the elements in the United Republic
of Tanzania’s FCA are as indicated in the diagram
below:
Merger control
Prohibition
of anti-competitive
agreements
Elements of
Tanzania’s
Competition Law
Consumer
Protection
Abuse of
Market Power
2.3.1 Prohibition of Anticompetitive
Agreements
As mentioned previously, Section 8 of the FCA is
couched in the context of Article 101 of the Treaty
on the Functioning of the European Union (TFEU),
as follows:
A person shall not make or give effect to an agreement
if the object, effect or likely effect of the agreement
is to appreciably prevent, restrict or distort
competition.
Certain of the legal terms used in this general pro-
lay the conceptual framework for understanding
the competition provisions of the FCA.
… any agreement, arrangement or understanding
between two or more persons, whether or not it is:
(a) formal or in writing; or (b) intended to be enforceable
by legal proceedings, and includes a decision of
an association.
-
the concern that Section 8 deals with “agreement”
and not “conduct” or “behaviour”. They understood
this to mean that the FCC can only deal with
47
Section 8 matters where there is established an
agreement, not merely where a conduct has been
could not enforce the law. The FCC staff were of
the view that this has affected the enforcement of
of an agreement before they look into the conduct
that may have “appreciably” affected competition.
provided by Section 2 FCA, it needs however to be
pointed out that an agreement does not necessarily
have to be formal or in writing given that “arrangements”
and “understandings” that may be inferred
from the actual market behaviour of the suspected
and (b) are not conjunctive but disjunctive, that is,
(a) and (b) do not have to be mutually inclusive.
tion
8 FCA are provided by Section 5 FCA:
5(2). ‘’Competition’’ means competition in a market
in [the United Republic of] Tanzania and refers to the
process whereby two or more persons:
(a) supply or attempt to supply the same or
substitutable goods or services to the persons
in the same relevant geographical market; or
(b) acquire or attempt to acquire the same or
substitutable goods or services from the
persons in the same relevant geographical
market.
(3) A person is a “competitor” of another person if
they are in competition with each other or would,
but for an agreement to which the two persons are
parties, be likely to be in competition with each other.
(4) ‘’Market’’ means a market in [the United Republic
of] Tanzania or a part of [the United Republic of]
Tanzania and refers to the range of reasonable possibilities
for substitution in supply or demand between
particular kinds of goods or services and between
suppliers or acquirers, or potential suppliers or acquirers,
of those goods or services.
tion
or determining whether a person has a dominant
position in a market, the following matters, in addition
to other relevant matters, shall be taken into account:
(a) competition from imported goods and
services supplied by persons not resident or
carrying on business in [the United Republic
of] the United Republic of Tanzania; and
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