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ZAMBIA charged in other countries in the region, which average a maximum of about annual turnover or assets in Zambia of the merging parties, whichever is higher, with a cap of maximum fee of 16 666 667 fee units, which translate purpose of defraying the Commission’s costs of merger examination, and transaction costs of mergers. pansion. The Government however offered the Commission three years ago Commission has not occupied because the building needs a lot of renovation. Board of Commissioners, which is the adjudicative wing of the Commission. of the Commission’s investigative wing, might therefore present appealable grounds on determinations and decisions made by the Board on competition and consumer protection cases. 10. The Commission is expending a lot of resources in investigating relocation of plant and equipment from Zambia, which raises little or no competition concerns, for reasons other than promotion of competition. While in the past, the Commission would recover the cost of these investigations, the new Act does not provide for a legal instrument to recover those costs. 11. The amounts being allocated by the Commission for its advocacy and awareness activities, which constituted only 2.19 per cent of its total recurrent expenditure budget in 2010, are not enough, given the stakeholders’ expectations and its own admission that lack of awareness of the public on both competition and consumer issues is a formidable challenge to it. The Commission’s advocacy and awareness work is also being coordinated under its Consumer & Public Relations Department, which is under-staffed and divides its meagre resources between investigation and control of unfair trading practices and public relations. mean as a commitment or promise provided to the Commission by a person or enterprise to address any competition concern raised by the Commission. tory monopoly’ as to have the meaning of enterprise. 13. Section 14 of the Act provides that the dominance threshold for horizontal agreements is 30 per cent or more of goods or services in a relevant market, and that for vertical agreements is 15 per cent. The opposite should however be the case because horizontal agreements are potentially more harmful to competition than vertical agreements. 14. The threshold for establishing the existence of dominant position under section 15 of the Act has been reduced from the old Act’s 50 per cent of production or distribution of goods or services in Zambia, or any substantial part of the country, to 30 per cent. The reduction of the dominance threshold under the Act has however created marked differences with other Acts of Parliament that regulate the same enterprises, such as the ICT Act, and this creates compliance problems for the affected enterprises. II. Recommendations Directed to the Legislature 165 - mendations needs to be implemented simultaneously with recommendation 21, ie. the provision of adequate government funding for the Commission. by the Government should be expedited to enable its speedy occupation. It should be made very clear through a Statutory Instrument that the ex Commissioners does not give him voting rights on competition and consumer protection cases being determined by the Board. The Commission should stop using its scarce resources in investigating relo- tion complaints or concerns, and consider any competition concerns arising from such relocations using other competition instruments, such as merger control. and awareness activities, constituting not less than 5 per cent of its annual recurrent expenditure budget, and that the activities should be undertaken - tion of the term ‘statutory monopoly’ should be removed. Section 14 of the CCPA should be amended to provide that the share of supply threshold for authorization of horizontal agreements be 15 per cent or more, and that for vertical agreements be 30 per cent or more, not vice versa. The dominance thresholds in all the Acts of Parliament that regulate enterprises in Zambia be harmonized. ZAMBIA
166 VOLUNTARY PEER REVIEW OF CLP: A TRIPARTITE REPORT ON THE UNITED REPUBLIC OF TANZANIA – ZAMBIA – ZIMBABWE 15. While the taking into account of public interest factors in the assessment of mergers is in line with practices in several developing countries, a competition authority should however not be given wide discretionary powers of deciding what should constitute public interest in the context of considering competition cases since it normally does not have the capability of doing so. It is noted that section 31 of the CCPA under subsections (g) and (h) give the CCPC such wide discretionary powers in taking into account “socioeconomic factors as may be appropriate” and “any other factors that bears upon the public interest”, respectively. 16. Section 86(3) of the CCPA provides that the Commission may retain a practice however has potential adverse side-effects to effective implementation of competition policy and law. Firstly, it puts the neutrality of the com- guide the authority in arriving at its decisions on competition cases. Secondly, the monetary interest in competition enforcement activities directs the attention of the competition authority from other equally important competition promotion activities, such as advocacy. be retained by the Commission and is considered to be reluctant to do so. 17. Section 42 of the Act seems to exclude enterprises in regulated sectors from the requirements of Part IV of the Act, on mergers, and other parts of the Act since it only refers to the requirements of Part III, on restrictive business and anticompetitive trade practices. This might have been an oversight since mergers and acquisitions in regulated sectors are rife. 18. In terms of section 67(5) of the CCPA, the Minister can remove any mem- - greatly compromised. 19. The CCPA gives the Minister powers of removing a member of the Board of Commissioners without giving any reasons, which can be used for political reasons not related to the exigencies of the Commission. Section 31 of the CCPA should be amended by the deletion of subsections (g) and (h) that give the Commission wide discretionary powers of deciding what constitutes public interest in the consideration of mergers. Section 86(3) of the CCPA, which provides that the Minister of Finance may prescribe the percentage of the turnover paid by a person or an enterprise mission be should be deleted. Section 42 of the CCPA should be amended to make it clear that enterprises in regulated sectors are not exempted from the requirements of the Act, in particular not from the requirements of Part IVon mergers, to read that “the economic activities of an enterprise in a sector where a regulator exercises statutory powers is subject to the requirements of the Act”. The removal by the Minister of a member of the CCPT should be on clear grounds and reasons that should be provided for in the CCPA. The CCPA should provide for clear grounds upon which the Minister can III. Recommendation Directed to the Ministry of Commerce, Trade and Industry 20. The establishment of the CCPT under the CCPA is designed to fast track consumer protection remedies. Section 50(5) of the Act however provides that a person who, or an enterprise which, fails to comply with a Commission order to recall a product from the market commits an offence and is liable courts in Zambia can convict anyone, the whole purpose of establishing the CCPT for fast tracked remedies is defeated. 21. The Commission has a serious human resources gap since its present er expectations. While the universities in Zambia should be the natural pool tion policy and law, none of them are currently offering courses in subjects connection to competition policy and law. IV. Recommendations Directed to Treasury The rules being worked out for the CCPT should clearly spell out the roles of the Commission, the Tribunal and general law courts in the enforcement of consumer protection provisions of the Act to ensure the desired fast tracking of consumer protection remedies. resources gap, and also that the main University in Lusaka be assisted in introducing courses related to competition policy and law to provide a trained human resource source for the Commission.
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UNITED NATIONS CONFERENCE ON TRADE
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UNITUNITED NATIONS CONFERENCE ON TR
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2 VOLUNTARY PEER REVIEW OF CLP: A T
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COMPARATIVE ASSESMENT COMPARATIVE A
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PREFACE This comparative assessment
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PREFACE agreements. . In the United
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PREFACE Finally in the United Repub
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PREFACE be set at a percentage of t
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PREFACE the market price but constr
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PREFACE (d) the extent to which the
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PREFACE pendence is maintained and
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PREFACE the effectiveness of the or
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PREFACE practical solutions, for ex
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Page 174 and 175: ZIMBABWE FULL REPORT ZIMBABWE
Page 176 and 177: ZIMBABWE TABLE OF CONTENTS PREFACE
Page 178 and 179: ZIMBABWE This report is part of the
Page 180 and 181: ZIMBABWE With the growing political
Page 182 and 183: ZIMBABWE of restrictive practices,
Page 184 and 185: ZIMBABWE competition authorities do
Page 186 and 187: ZIMBABWE divided according to geogr
Page 188 and 189: ZIMBABWE The Commission in 2006 whi
Page 190 and 191: ZIMBABWE to take care of themselves
Page 192 and 193: ZIMBABWE (under Section 9); basical
Page 194 and 195: ZIMBABWE Full scale investigation i
Page 196 and 197: ZIMBABWE (ii) to produce any book,
Page 198 and 199: ZIMBABWE The fact that CTC has a co
Page 200 and 201: ZIMBABWE tariat of technocrats, who
Page 202 and 203: ZIMBABWE Table 2: Number of Competi
Page 204 and 205: ZIMBABWE Regarding the handling of
Page 206 and 207: ZIMBABWE (Emphasis by the author) b
Page 208 and 209: ZIMBABWE Section 5 (1) (f) that pro
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Page 212 and 213: ZIMBABWE Anti competitive agreement
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