a tripartite report - Unctad

118 VOLUNTARY PEER REVIEW OF CLP: A TRIPARTITE REPORT ON THE UNITED REPUBLIC OF TANZANIA – ZAMBIA – ZIMBABWE
common ownership or control over the whole or
part of their respective businesses”. Section 24(2)
goes on further to provide that a merger may
be achieved in the following circumstances: “(a)
where an enterprise purchases shares or leases
assets in, or acquires an interest in, any shares
or assets belonging to another enterprise; (b)
where an enterprise amalgamates or combines
with another enterprise; or (c) where a joint venture
occurs between two or more independent
enterprises.
competition legislation is comprehensive enough
to cover all possible combinations, including all
the three main types of mergers, as well as joint
ventures. It also covers ‘pure mergers’, where en-
acquisitions of one enterprise by another. It further
involves the acquisition of both assets and shares.
This is important since trading of shares on the
Zambia Stock Exchange would be covered by the
merger control provisions of the Act.
Unlike the old Act which only provided for pre-
Act provides that all reviewable mergers that meet
the Minister in terms of section 26(5) of the Act
tion,
i.e., whether they are of a horizontal, vertical
or conglomerate nature.
-
-
authorities encounter when they challenge anticompetitive
mergers after they occur. Pre-merger
the opportunity to stop the merger if it will result in
a substantial lessening of competition in a relevant
market since it is much easier to stop the merger
in advance rather than to try to ‘unscramble the
eggs’ once the merger has been consummated. 140
tion
authority is therefore not so much constrained
in terms of the most suitable remedies, and the
of the remedies are minimized.
The term ‘reviewable’ mergers is used in section
25(1) of the Act to mean those mergers that meet
the Minister. Therefore, not all mergers need to
unlike under the old Act which required all merg-
size. This is in line with general practice, and for
practical reasons. Merger examination is one of
the most resource-intensive activities in the implementation
of competition policy and law. To
tition
authority for examination would therefore
place a heavy resource burden on the authority
petition
authorities in developing countries, and
even some in the more developed countries, do
not have such resources. It would also add a sig-
the business community.
The Regulations to the Act 141 provide as follows
under regulation 8(1) with regards thresholds for
authorization of proposed mergers:
“A merger transaction shall require authorization
by the Commission where the combined turnover
or assets, whichever is higher, in Zambia of the
available”. 142
threshold captures all mergers involving large
companies that meet the prescribed threshold
stantial
turnover in Zambia, or does not hold any
assets in Zambia. The threshold therefore does not
take into account the de minimus rule that target
tion
thresholds in some other countries in the region,
such as in South Africa, are a combination
of the combined turnover/asset threshold of the
merging parties and a minimum turnover/asset
It is recommended that the merger
constituted of a combination of the
combined turnover/asset threshold in
Zambia and a minimum turnover/asset