a tripartite report - Unctad
a tripartite report - Unctad
a tripartite report - Unctad
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82 VOLUNTARY PEER REVIEW OF CLP: A TRIPARTITE REPORT ON THE UNITED REPUBLIC OF TANZANIA – ZAMBIA – ZIMBABWE<br />
7.0 FINDINGS AND POSSIBLE<br />
POLICY OPTIONS<br />
7.1 <br />
implementation of competition law needs to be<br />
<br />
in the law, as well as through some improvements<br />
in the legal framework. The FCC may currently be<br />
limited in effective enforcement of the FCA due<br />
to express exemptions from the application of the<br />
FCA of selected but key regulated sectors, such<br />
as telecommunications, energy (petroleum, water<br />
and gas), surface and marine transport, aviation,<br />
crop marketing boards and any other subsequent<br />
legislation thereafter. There is also a problem of restricting<br />
the enforcement of Section 8 and limiting<br />
the scope to an “agreement” without the inclusion<br />
of decisions, conduct or behaviour of actors in a<br />
market. The rule of reason approach for hard-core<br />
horizontal agreements would also require revision<br />
and alignment with the international best practices.<br />
While the law calls for punishment to Directors and<br />
shareholders of a company, there is no mechanism<br />
of how these would be dealt with under the FCA.<br />
7.2 The following recommendations are<br />
made:<br />
A. INSTITUTIONAL ISSUES AND AGENCY EFFECTIVENESS<br />
RECOMMENDATION REQUIRED ACTION RESPONSIBILITY<br />
1. Funding to the FCC and the FCT must<br />
be predictable and implementable as<br />
provided for under Section 78(c) of the FCA<br />
There must be a mandatory provision to deal with remittance of funds<br />
to the FCC and FCT and it should not be discretional.<br />
There must be an appeal process to secure the funds.<br />
2. Consumer protection NCAC replicates the advocacy functions of the Commission. Its staff<br />
and funds can be absorbed in an expanded consumer protection,<br />
advocacy and anti-counterfeit division within FCC – or make NCAC<br />
an enforcement agency for consumer protection as well as advocacy.<br />
3. Appeals to the Minister where a regulator<br />
engages in anticompetitive conduct<br />
Under Section 96(3) of the Act, the FCC is expected to appeal to the<br />
Minister where a sector regulator makes an anticompetitive decision.<br />
This appeal would better lie with the Tribunal, which would be better<br />
<br />
B. ANTI-COMPETITIVE TRADE PRACTICES<br />
Ministry/FCC<br />
Minister/FCC/NCAC<br />
FCC/Tribunal/Minister<br />
RECOMMENDATION REQUIRED ACTION RESPONSIBILITY<br />
4. Inclusion of vertical agreements in the law Amendment to the Law to include conduct such as tied selling, resale<br />
price maintenance, etc.<br />
FCC<br />
5. Enumeration of conduct to be considered Amendment to the law. In the interim, there is need to have clear FCC<br />
misuse of market power<br />
guidelines on this other than the ones contained in the merger<br />
guidelines.<br />
6. Introduce joint/combined dominance in the FCC<br />
FCA<br />
exercising dominance in a market may be cited for joint dominance.<br />
7. Introduce a new provision to deal with buyer<br />
power in the Act to address concerns raised<br />
in the agricultural sector<br />
Inclusion of buyer power FCC/Minister<br />
8. Need to have a more exhaustive list of Expansion of the list under Section 9 to include market allocation, FCC<br />
horizontal/cartel arrangements<br />
customer allocation and output restriction.<br />
9. There is need to remove the tying of intention Intention and negligence should not be of importance to cartel behav- FCC<br />
and negligence to cartel conduct under<br />
Section 9(4) of the FCA<br />
iour and therefore section 9(4) should be removed from the law.<br />
10. Issuance of Summons when Commission Summons under Section 71 should ideally be issued only when<br />
FCC<br />
wants information<br />
person/s refuse or are not able to voluntarily submit the information.