a tripartite report - Unctad
a tripartite report - Unctad
a tripartite report - Unctad
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48 VOLUNTARY PEER REVIEW OF CLP: A TRIPARTITE REPORT ON THE UNITED REPUBLIC OF TANZANIA – ZAMBIA – ZIMBABWE<br />
(b) the economic circumstances of the relevant<br />
market including the market shares of persons<br />
supplying or acquiring goods or services in<br />
the market, the ability of those persons to<br />
expand their market shares and the potential<br />
for new entry into the market.<br />
While the law does not provide the criteria to be<br />
applied to determine that an agreement “appreciably”<br />
prevents, restricts or distorts competition,<br />
the process of determining harm on competition<br />
is contained in the Merger Guidelines. 43 In Arusha<br />
Municipal Council case, the matter was for instance<br />
“exclusive rights,” which are not expressly captured<br />
under the Act or in any of the Commission guidelines.<br />
In a landmark Serengeti Breweries Limited v Tanzanian<br />
Breweries Limited 44 , the FCC discussed Section<br />
8(1) of the FCA as follows:<br />
The word object as used in that provision means the subjective intention of parties when entering into that agreement.<br />
Where an agreement has an object of restricting competition it is not very necessary to establish that its<br />
effect would also have an anticompetitive effect in competition under section 8(1) of the FCA, 2003. Subsection 6<br />
<br />
of objects of that agreement. Agreements considered to have<br />
<br />
these are considered as illegal per se in accordance with Section 9 of FCA, 2003.<br />
When an agreement does not have the object (subjective intention) of preventing, restricting or distorting competition<br />
it is necessary to consider its effect or likely effect. When looking on the effect or likely effect it is necessary to<br />
conduct an analysis of the agreement’s effect in the market before concluding that there is an infringement.<br />
Oxford Advanced Learner’s Dictionary, 6th Edition, by A.S. Hornby, published by Oxford University Press, 2001. The<br />
Dictionary provides the meaning of the three words as follows:<br />
Prevent – “to stop something from happening (pg 922)”.<br />
Restrict – “to limit the size, amount or range of something”, “to stop something from moving freely”, “to allow<br />
yourself or somebody to have only a limited amount of something or to do only a particular kind of activity (pg<br />
1004)”.<br />
Distort – “to change the shape, appearance or sound of something so that it is strange or not clear”, “to twist or<br />
change facts, ideas, etc, so that they are no longer correct or true (pg 338).”<br />
Later on in the same case, the FCC explained the<br />
following 45 :<br />
The object, effects and likely effects are in alternative<br />
and not mutually exclusive requirements for<br />
tions<br />
8 and 9 of the FCA, 2003. This is clear even<br />
from the European Court of Justice decision of<br />
Societe Technigue Miniere v. Maschinenbau Ulm 46<br />
which stated that the words: “object and effects<br />
were to be read disjunctively, so that it is necessary<br />
to consider what the object of an agreement<br />
is; only if it is not clear that the object of an<br />
agreement is to harm competition it is necessary<br />
to consider whether it might have the effect of<br />
doing so”<br />
The FCC did not however demonstrate and show<br />
how, in this case, the application of the word “appreciably”<br />
to the extent of preventing, restricting<br />
or distorting competition. Section 8(1) does not<br />
just deal with agreements that may prevent, restrict<br />
or distort competition rather those that “appreciably”<br />
do so.<br />
The law proceeds to highlight that an agreement<br />
in contravention of this section is unenforceable<br />
except to the extent the provisions of the agreement<br />
causing it to be in contravention of the section<br />
are severable from the other provisions of the<br />
agreement. Subsection three goes further to hold<br />
a rebuttable presumption47 that unless proved<br />
otherwise, it shall be presumed that an agreement<br />
does not have the object, effect or likely effect of<br />
appreciably preventing, restricting or distorting<br />
competition if none of the parties to the agreement<br />
has a dominant position in a market affected<br />
by the agreement and either where the combined<br />
shares of the parties to the agreement of each<br />
market affected by the agreement is 35 per cent