a tripartite report - Unctad

42 VOLUNTARY PEER REVIEW OF CLP: A TRIPARTITE REPORT ON THE UNITED REPUBLIC OF TANZANIA – ZAMBIA – ZIMBABWE
would be subpoenaed to appear before the Commission
or the Tribunal. Some countries have
Mutual Legal Assistance Treaties or other related
cooperation arrangements. The East African Community
(EAC) Competition Law would likely deal
with persons under the EAC.
Section 12 of the Act contains explicit exceptions
to the application of competition law. It holds that
under the Act, an agreement shall not be prohibited
to the extent it relates to the:
(a) remuneration, conditions of employment,
hours of work or working conditions of
employees;
(b) compliance with or application of
standards of dimension, design, quality or
performance prepared or approved by the
Tanzania Bureau of Standards or any other
association, institution or body prescribed
by regulations;
(c) export of goods from the United Republic of
Tanzania or the supply of services outside the
United Republic of Tanzania if such particulars
of the agreement as the Commission may by
within 21 days after it is made. However, this
shall cease to apply to an agreement if the
Commission decides the agreement may
have an effect on competition in the United
to the agreement of that decision; and
(d) If it is necessary to do so in order to comply
with the obligations of the United Republic
under an agreement with the Government
of another country, the particular agreement
or conduct, or agreements or conduct of
particular kind, shall be excluded from the
prohibitions under the Act.
These provisions appear to be standard exceptions
contained in various other comparable laws in the
region. The difference may be that the Tanzanian
law does not provide for a clear exception of possession
of intellectual property. Some aspects of
intellectual property protection are contained in
the Merchandise Marks Act.
2.2.1 State immunity
In the UNCTAD Model Law on Competition (UNC-
TAD 2004), it is explicit for instance that competi-
tion law does not apply to the sovereign acts of
the State itself, or to those of local Governments,
or to acts of enterprises or natural persons which
are compelled or supervised by the State or by local
Governments or branches of Government acting
within their delegated power. However, the law
should apply to the State and its agents engaged
in commercial activity.
As regards the application of the Act to State bodies
is still debatable in the United Republic of Tanzania
as the competition law has been used on
some State bodies but not on some – depending
on whether they are involved in “trade”. While
Section 6(1) makes it mandatory that the law shall
apply to the State and State bodies and local Government
bodies engaged in trade, Section 6(2)
holds that
penalty under this Act or be liable to be prosecuted
for an offence against this Act. Section 2 of the Act
nia”
which implicitly refers to the Government.
While the Act “applies” to “the State”, the application
is only academic if not advisory in nature as the
FCC cannot enforce a directive against the State. It
This is manifest in Section 6(2) of the Act. To demonstrate
that the exemption does not extend to
‘State bodies, the FCC has applied the law against
of “Alliance Media v Arusha Municipal Council”, the
Council was held liable for behaving “anticompetitively”
by granting exclusive rights to Skytel Advertising
Company in the business of installing gantries
and billboards along the Arusha Municipal roads.
The Council was ordered to pay TZS 10 million and
the agreement itself was declared null and void. 34
On the other hand, there is a distinction made between
“the State” and a ‘State body” under Section
6 of the FCA. This was the case with the Tanzania
National Roads Agency (TANROADS), which
is a creation of statute. 35 The FCC overruled TAN-
ROADS who challenged the FCC’s jurisdiction over
its exclusionary issuance of permits to outdoor
serves
countrywide. In a 32 page ruling read by its
Chairperson, the FCC expressed satisfaction that:
(i) The alleged conduct of the respondent
(TANROADS), which erected barriers for
potential entrants and ousted competitors
from outdoor advertising business was purely