a tripartite report - Unctad

ZAMBIA
merges providing the Commission with all relevant
information that is required for the completion
of the assessment. The full cooperation of
the merging parties in the assessment of mergers
is therefore assured. It is further provided in
section 32(2) that “where the Commission does
not issue its determination regarding a proposed
(1), the proposed merger shall be deemed to be
approved”.
The need to compel competition authorities to
consider mergers as expeditiously as possible is
in line with international best practice. The negotiation
and conclusion of mergers involves a lot
of transaction costs to the merging parties, which
should not unnecessarily be increased by excessively
long merger assessment periods on the
part of competition authorities. The up to ninetyday
merger assessment period provided for under
section 32(1) of the CCPA however seem to be
rather long for mergers that do not raise serious
competition concerns, such as most conglomerate
mergers and certain vertical mergers, whose
assessment can be fast-tracked. Section 32(3) of
the Act further provides that “the Commission
may extend the assessment period referred to in
subsection (1), by a period not exceeding thirty
days”. The merger assessment period in Zambia
can therefore extend to 190 days! The competition
legislation of some other countries in the region,
such as South Africa and Namibia, provide
that the competition authority must consider and
make a determination in relation to a proposed
merger within 30 days after the date on which
can be extended due to the complexity of the issues
involved for a further period not exceeding
60 days. 144
It is recommended that the CCPA provides
for merger assessment in two phases,
with Phase 1 involving simple transactions
taking a shorter period of, say, thirty days,
and Phase 2 involving more complex
transactions taking up to ninety days.
The provisions of section 36 that “an approval
of a merger by the Commission under this Part
shall not relieve an enterprise from complying
with any other applicable laws” are also relevant
121
in the context of Zambia which has a number
of sector regulators with statutory competition
functions. Mergers of enterprises in certain regu-
tor,
also need to be sanctioned by the relevant
sector regulators.
The merger control provisions of the new Act are
by far a great improvement to those of the old Act.
Stakeholder comments in that regard included the
following: “the new Competition and Consumer
Protection Act is very comprehensive, and its coverage
of merger control is good” 145 , and “the new
Act when compared with the old Act has been a
milestone since it captures virtually everything on
merger control” 146
on bases for approving or disapproving mergers.
The Commission however had administrative
guidelines to that effect, which still exist. In
considering whether to grant authorization to a
proposed merger, takeover or any other form of
acquisition, the Commission’s main concern is to
ensure that the merger or takeover will not result
in a substantial lessening of competition in any
market in Zambia or a substantial part of it. However,
it is taken into account that mergers may
larly
where increased exposure to global markets
costs, improve quality and service and innovate
in order to become more competitive in those
assessing the impact of a merger on competition
The Commission’s Merger Control Guidelines were
in the process of being redrafted for adoption by
the Board of Commissioners by the time of this
peer review.
The Commission’s Directorate of Mergers and
Monopolies (DMM) in January 2011 produced its
Operations Manual, which cover a wide range of
areas from strategic merger control objectives,
through investigations, to standard letters on various
merger control issues. Box 9 below shows the
standard operational procedure in a typical merger
case as outlined in the Manual.
ZAMBIA