a tripartite report - Unctad

164 VOLUNTARY PEER REVIEW OF CLP: A TRIPARTITE REPORT ON THE UNITED REPUBLIC OF TANZANIA – ZAMBIA – ZIMBABWE
Table 12: Summarized Policy Recommendations
I. Recommendations Directed to the Competition and Consumer Protection Commission (CCPC)
Observation Recommendation
1. The Act under section 10 does not give examples of other vertical agreements
than re-sale price maintenance. Vertical restraints are numerous, and
include agreements and arrangements on exclusive distribution and dealing,
tie-in sales, quantity forcing, franchises, etc., which are all common in Zambia.
While the list of vertical restraints cannot be exhaustive, it would assist
the business community in complying with, and the Commission in enforcing,
competition law if the common such restraints in Zambia are listed for
guidance purposes.
2. The Regulations to the CCPA provide that “a merger transaction shall require
authorization by the Commission where the combined turnover or as-
-
not realize any substantial turnover, or hold any assets, in Zambia. Merger
tion
of the combined turnover/asset threshold of the merging parties and a
3. Section 32(1) of the CCPA provides that the “Commission shall complete
its assessment of a proposed merger and issue its determination within a
period of ninety days from the date of the application for authorization of
the proposed merger”. The up to 90-day merger assessment period seem to
be rather long for mergers that do not raise serious competition concerns.
4. Stakeholder concerns over the Commission’s merger control activities include
inadequate sensitization of the business community on issues such as
of mergers.
5. Section 62(1) of the Act provides for the prohibition through injunctions
or staying orders certain acts pending investigation. While staying orders are
necessary in circumstances described in the Act, they need to be issued with
extreme caution since they can have serious adverse effects on the competitiveness
of the affected enterprise if the investigation ultimately clears
the enterprise from the alleged anticompetitive practices. Such orders must
6. The Commission has negotiated Memoranda of Understanding (MoUs)
with a number of sector regulators with competition functions on concurrent
jurisdiction on competition matters. However, other statutory bodies without
competition functions have indicated a willingness to cooperate with the
Commission in other areas, such as the privatization of State enterprises,
the promotion of small and medium enterprises, and consumer protection.
Even some of those sector regulators with competition functions have indicated
willingness to cooperate with the Commission in the area of consumer
protection.
The Commission should list through a Statutory Instrument the common
types of vertical agreements and arrangements that restrain competition in
Zambia for the information of the business community, and for the guidance
of its competition practitioners. The list should clearly distinguish between resale
price maintenance, that is per se prohibited and other forms of vertical
restrictions that fall under the rule of reason.
the combined turnover/asset threshold in Zambia and a minimum turnover/
The Regulations to the CCPA should provide 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. It is noted that under the current institutional framework of
the Commission, reducing the timeframe for non-problematic transactions
part-time. This could possibly be addressed by having Commissioners work
fulltime so that cases can be brought to their attention on a continuous basis.
An alternative would be to give the secretariat discretion on simple mergers.
The Commission’s Merger Control Guidelines that are in the process of being redrafted
for the adoption by the Board of Commissioners should cover pertinent
ers,
and any other current merger control practices and should be published
together with other pertinent information on Zambia’s merger control system on
the Commission’s website for easy access by the business community.
The Commission in giving directions on staying or prohibition orders under
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 […] months from the date of
its publication; whichever is the shorter period”.
to those that it has concurrent jurisdiction on competition matters with, but
should also be extended to other regulators on other areas of cooperation.