a tripartite report - Unctad

ZAMBIA
investigation ultimately clears the enterprises from
the alleged anticompetitive practices. Such orders
must therefore be made on very good ground,
It is recommended that the Commission
in giving directions on staying or
prohibition orders under section 62(1) of
the validity of the orders. This should be
provided for in a Statutory Instrument,
with the following suggested wording:
“A staying order in terms of section 62(1)
of the Act shall remain in force: (a) until
completion of the Commission’s
investigation into the matter concerned;
or (b) for a period of six months from
the date of its publication; whichever
is the shorter period”.
Table 1: Remedies in Merger Control
In Case of Prospective Mergers (Section 62(2)) In Case of Completed Mergers (Section 62(3))
The Commission may, in the case of a prospective merger,
require an enterprise to:
• desist from completion or implementation of the merger
insofar as it relates to a market in Zambia;
•
merger can be completed or implemented; or
• adopt, or desist from, such conduct, including conduct
condition of proceeding with the merger.
Remedies in merger control under the Act are
therefore both of a structural and behavioural nature.
154 While both forms of remedies are effective
in redressing competition concerns, structural remedies
are generally preferred to behavioural ones,
mainly because they are felt to be more effective in
the long run, and do not require continuing oversight
or regulation by competition authorities. In
requiring continuing oversight by competition authorities,
behavioural remedies place a heavy burden
on the resources of the authorities, which are
scarce in developing countries like Zambia. Structural
remedies have been found to be most effective
in merger control, particularly in remedying the
competitive effects of horizontal mergers.
In the case of restrictive business and anticompetitive
trade practices (i.e., anticompetitive agree-
133
Sections 58 and 59 of the Act provide for Commission
directions relating to restrictive agreements (of
both horizontal and vertical nature), and relating
to distortion, prevention or restriction of competition
(i.e., abuse of dominance). The directions may
be in the form of written orders and may include
requirements that the enterprise to which they are
given should: (a) terminate or amend an agreement;
(b) cease or amend a practice or course of
conduct, including conduct in relation to prices;
(c) supply goods or services, or grant access to
facilities; (d) separate or divest itself of any enterprise
or assets; or (e) provide the Commission with
Section 61 provides for remedies in merger control.
The remedies are in the case of both prospective
mergers and completed mergers that have
been found to result in a substantial lessening of
competition. These are listed in Table 1 below.
The Commission may, in the case of a completed merger,
require an enterprise to:
•
• adopt, or to desist from, such conduct, including conduct
condition of maintaining or proceeding with the merger.
ments and abuse of dominant position), both structural
and behavioural remedies are also provided
under the Act. While structural remedies have
been found to be effective in merger control, they
have been found not to be suitable in redressing
certain other competition concerns. For example,
while structural remedies have been applied on
abuse of dominance 155 , they may not be the most
suitable for such anticompetitive practices. It has
generally been accepted that being dominant per
se is not being anticompetitive, but it is the abuse
of that dominance through the engagement of
exclusionary and exploitative practices which is
cause for competition concern. This is the reason
why most competition authorities consider abuse
of dominance using the rule-of-reason approach
ZAMBIA