Enforcing the Competition Law in Namibia A Toolkit - cuts ccier

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Refusal to deal/supply is not explicitly mentioned as being prohibited in theCompetition Act 2003 of Namibia, even though it is perceived importance todeveloping countries. However, refusal to deal/supply might fall under thegeneral prohibition of the Section 26 (1). As this issue is very controversialand economically complex, the competition authorities are well-advised toproceed cautiously in this area. In order to develop a useful body of case law,the Competition Commission should be careful not to mistake injury tocompetition with injury to individual competitors. Orders requiring firms toprovide mandatory access to “essential” facilities should sought only whenthe benefits of providing such access clearly outweigh the costs. TheCommission should avoid applying excessively an “essential facilitiesdoctrine” that means routinely compelling firms to deal with rivals. Suchattitude would benefit competitors, but not competition. Moreover, it woulddiscourage firms from investing in new products and services for fear thatthey may not earn an adequate recompense.Box 21: IPRs over Weekly TV Guide AbusedThe European Court of Justice (EJC), in its decision of 6 April 1995,confirmed that Radio Telefis Eireann (RTE) and Independent TelevisionPublications Limited (ITP), who were the only sources of basic informationon programme scheduling, which is an indispensable raw material forcompiling a weekly television guide, could not rely on national copyrightprovisions to refuse to provide that information to third parties. Such arefusal, the Court held, in this case constituted the exercise of an IPRbeyond its specific subject matter and, thus, an abuse of a dominant positionunder Article 86 of the Treaty of Rome.RESTRICTIVE BUSINESS PRACTICESThe court argued that RTE and ITP held a dominant position, becausethey were the only source in Ireland of the basic information necessary toproduce weekly television programming guides and were thus in a positionto reserve for themselves the secondary market for weekly television guidesby excluding all competition from that market.The Court considered that, whilst refusal to grant a license in exercisingan IPR is not of itself an abuse of a dominant position, it might be anabuse where special circumstances exist. Such circumstances includedthe lack of an actual or potential substitute for a weekly television guide,the existence of a specific, constant and regular demand for such a guide,and the fact that the refusal to grant a license to Magill to produce such aguide prevented the appearance of a new product on the market whichRTE and ITP did not offer.Source: Joined Cases 241/91 P etc. RTE and ITP v Commission [1995] ECR I-743Enforcing the Competition Law in Namibia: A Toolkit 53
5. ENFORCEMENT OF THE COMPETITIONLAW AGAINST RBPsRBPs in Namibia, according to theCompetition Act 2003, fall withinthe purview of the NamibianCompetition Commission. TheCommission is responsible for theadministration and enforcement ofthis Act and, in addition to any otherfunctions conferred to it. 53RBPs in Namibia, accordingto the Competition Act 2003,fall within the purview of theNamibian CompetitionCommission.Pursuant to Section 33 (1) the Commission may, either on its own initiative orupon receipt of information or a complaint from any person, start aninvestigation into any conduct or proposed conduct which is alleged toconstitute or may constitute an infringement of:• the Part I prohibition (Restrictive Agreements, Practices and Decision);or• the Part II prohibition (Abuse of Dominant Position).Any organisation or individual believing their rights and interests have beeninfringed by a violation of the Act (for instance, a company that thinks thepractices of a competitor are in breach of the Act) has the right to lodge acomplaint with the Commission. Section 57 of the Act imposes the time limitfor commencement of investigation. An investigation into an allegedinfringement of the Part I or the Part II prohibition may not be initiated afterthree years from the date the infringement has ceased.If the Commission, having received from any person a complaint or a requestto investigate an alleged infringement decides not to conduct an investigation,the Commission must in writing inform that person of the reasons for itsdecision. The Act does not give the right to appeal against such decision.On the other hand, if the Commission decides to conduct an investigation, itmust in writing give notice of the proposed investigation to every undertakingthe conduct of which is to be investigated and must in the notice:• indicate the subject-matter and purpose of the investigation; and• invite the undertaking concerned to submit to the Commission, within aperiod specified in the notice, any representations which the undertakingmay wish to make to the Commission in connection with any matter to beinvestigated.54 Enforcing the Competition Law in Namibia: A Toolkit
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CONTENTSPreface ...................
Page 6 and 7:
LIST OF BOXESBox 1: An Overview of
Page 8 and 9:
PREFACEI am pleased to write this p
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y the Korean Fair Trade Commission
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RBPs : Restrictive Business Practic
Page 15 and 16: INTRODUCTIONOver time, the Governme
Page 17 and 18: Section 26 of the Act defines abuse
Page 19 and 20: INTRODUCTION1.3 Country BackgroundN
Page 21 and 22: ABOUT THE MARKET ECONOMYsales and p
Page 23 and 24: 3. MARKET AND COMPETITION3.1 Compet
Page 25 and 26: MARKET AND COMPETITIONare able to s
Page 27 and 28: MARKET AND COMPETITION3.3 Market Sh
Page 29 and 30: MARKET AND COMPETITIONCompetition p
Page 31 and 32: RESTRICTIVE BUSINESS PRACTICESmarke
Page 33 and 34: RESTRICTIVE BUSINESS PRACTICESAccor
Page 35 and 36: RESTRICTIVE BUSINESS PRACTICES4.3 E
Page 37: RESTRICTIVE BUSINESS PRACTICESappli
Page 42 and 43: for fixing prices, will refrain fro
Page 44 and 45: Any agreement, decision and concert
Page 46 and 47: • Agreeing with competitors that
Page 48 and 49: customers might be able to force a
Page 50 and 51: 4.6 Vertical AgreementsVertical ant
Page 52 and 53: Box 12: Hungarian Book Publishers i
Page 54 and 55: RESTRICTIVE BUSINESS PRACTICESfor e
Page 56 and 57: Box 15. Manufacturer vs Manufacture
Page 58 and 59: Box 16: Tie-up Sales of Gas Stoves
Page 60 and 61: • directly or indirectly imposing
Page 62 and 63: Box 18: The Conduct of MTN of Charg
Page 64 and 65: Box 20: Predatory Practices in the
Page 68 and 69: A complaint file must include evide
Page 70 and 71: suppliers he tried said that they h
Page 72 and 73: information relating to the affairs
Page 74 and 75: A leniency policy describes the wri
Page 76 and 77: manufacturers regarding their respo
Page 78 and 79: (c) is able to appoint, or to veto
Page 80 and 81: 6.4 Control of MergersThe control o
Page 82 and 83: it may, within 30 days of the date
Page 84 and 85: The initial information filing typi
Page 86 and 87: Box 27: South African Pharma Merger
Page 88 and 89: The reasons for this recognition ma
Page 90 and 91: Box 30: The Graphite Electrodes Car
Page 92 and 93: Boeing convinced the EC to declare
Page 94 and 95: In India, for instance, in 1994, Hi
Page 96 and 97: 7.5 Dealing with Cross-border Issue
Page 98 and 99: In this regard, it is important to
Page 100 and 101: The following sections will set out
Page 102 and 103: Box 34: Microsoft’s Abuse of Domi
Page 104 and 105: through payment of remuneration. Co
Page 106 and 107: Box 36: Importation and Retailing o
Page 108 and 109: Table 1: Different Stages of Instit
Page 110 and 111: power in a fully integrated competi
Page 112 and 113: investigate managers and employees
Page 114 and 115: COMPETITION VS INTELLECTUAL PROPERT
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Namibian Consumer’s Association (
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In addition to the above-mentioned,
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staff while gaining practical exper
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To conclude, the Competition Act is
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ENDNOTES1 Available at www.cuts-int
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50 Mehta, Pradeep S., Competition a
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Enforcing the Competition Law in Na
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