a tripartite report - Unctad

112 VOLUNTARY PEER REVIEW OF CLP: A TRIPARTITE REPORT ON THE UNITED REPUBLIC OF TANZANIA – ZAMBIA – ZIMBABWE
sovereign acts of the State. This is a general nonapplication
of competition law worldwide, which is
recognized in the UNCTAD Model Law on Competition.
The explicit exemptions from the application of the
Act are provided for under section 3(3), and include
intellectual property rights (IPRs), collective
bargaining activities, non-commercial activities of
a socio-economic nature, and certain aspects of
statutory monopolies. The relevant provisions of
section 3(3) provide as follows:
“This Act shall not apply to –
(a) an agreement or conduct insofar as it relates to
intellectual property rights including the protection,
licensing or assignment of rights under, or existing
by virtue of, a law relating to copyright, design
rights, patents or trademarks;
(b) activities of employers or an agreement to which
employers are party, insofar as it relates to the
remuneration, terms or conditions of employment
of the employees;
(c) activities of trade unions and other associations
directed at advancing the terms and conditions of
employment of their members;
(d) concerted conduct designed to achieve a noncommercial
socio-economic objective or similar
purpose; and
(e) the business of any enterprise exercising a statutory
monopoly which precludes the entry of another
enterprise into the relevant market in Zambia:
Provided that –
(i) the enterprise does not enter into an
agreement that has the purpose of restricting
competition;
(ii) the conduct of the enterprise does not, in
itself or in conjunction with another enterprise,
amount to an abuse of a dominant position; or
(iii) the enterprise, if it wishes to enter into a
merger transaction, is in compliance with the
provisions of this Act relating to mergers.”
It is noted that the exemption in the old Act on activities
approved or required under an agreement
to which the government is a party, which had
placed the privatization process outside the jurisdiction
of the Commission, has been removed in
the new Act. The Commission can now therefore
play its important role in the privatization of State
enterprises of ensuring that public monopolies
are not simply turned into private ones, which are
mission’s
involvement in the privatization process
was formalized in 2010 when Cabinet determined
that it be included in the Committee that oversaw
the privatization of the telecommunications company.
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The other removed exemption is that in respect
of activities of professional associations which
are designed to develop or enforce professional
standards reasonably necessary for the protection
of the public. This block exemption of the activities
of professional associations has been replaced
by provisions of section 22 of the new Act, which
provide that professional associations whose rules
contain a restriction that has the effect of lessening
competition in a market may apply to the Com-
restrictive practice. The activities of professional
associations can therefore now be considered for
exemption on a case by case basis.
The non-application of the Act to “the business
of any enterprise exercising a statutory monopoly
which precludes the entry of another enterprise
into the relevant market in Zambia” is in line with
the general non-application of competition law to
sovereign acts of the State. The provision in the
Act as rider to that exemption is very important
since it makes it clear that while the Commission
cannot challenge the existence of statutory monopolies,
it can still take the necessary corrective
measures if the monopolies engage in anticompetitive
practices that affect the competitiveness
of other companies with commercial businesses in
other sectors, or that adversely affect consumers..
Section 3(4) of the Act also provides another important
proviso to the exemption of intellectual
property rights in that an agreement or conduct
relating to IPRs can be subjected to the application
of the provisions of the Act if such agreement or
conduct involves a practice that is per se prohibited
under the Act, “or disproportionately restricts
or prevents competition”. Therefore, the Act is not
so much concerned over the holding of intellectual
property rights, but the abuse of those rights.
The Act also provides for other exemptions, exceptions
and exclusions from its application in the
form of authorizations. Section 18 provides that
enterprises may apply to the Commission for exemption
from prohibition of horizontal and vertical