a tripartite report - Unctad
a tripartite report - Unctad
a tripartite report - Unctad
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TANZANIA<br />
a competition issue to be determined by the<br />
Commission;<br />
(ii) The respondent engaged in trade and hence<br />
falls under the provision of section 6(1) of the<br />
Fair Competition Act;<br />
(iii) The respondent is a “State body” not the<br />
“State” and therefore is not subject to the<br />
exemption under section 6(2) of FCA;<br />
(iv) The permits issued by the respondent have<br />
a commercial value and do not fall under<br />
section 6(3) (b) (ii) and (iii) of FCA;<br />
(v) The relationship between the complainants<br />
and the respondent is contractual as per the<br />
provisions of section 10 of the Law of Contract<br />
Act, Cap 345 R.E. 2002; and<br />
(vi) Based on (v) above, the respondent is a<br />
suitable entity as per section 3(6) (b) and (c)<br />
of the Executive Agencies Act, Cap 245 as<br />
amended by the Finance Act, No 18 of 2002.<br />
Furthermore, Section 96 of the FCA clearly<br />
provided that the FCA applies to all persons<br />
in all sectors of the economy and shall not<br />
<br />
other Act, except to the extent that the Act is<br />
passed after the commencement of the FCA<br />
<br />
any subsidiary legislation purports to exclude<br />
or modify FCA.<br />
-<br />
<br />
<br />
The reason advanced by the respondent to the<br />
complainants for issuing exclusive permits was that<br />
the respondent intended to start a three-year pilot<br />
scheme and, in order to monitor the pilot exercise<br />
effectively; it had decided to identify only two lo-<br />
<br />
all the twenty one regions of Tanzania Mainland.<br />
<br />
operating in the business of outdoor advertising<br />
were ordered by TANROADS to remove all installed<br />
gantries (billboards) from the road reserve within 30<br />
days counted from 1 August 2009 and that their<br />
advertising permits had been revoked. The FCC annulled<br />
the exclusive contracts.<br />
Where the State is an active commercial player, the<br />
<br />
43<br />
with the private sector that are engaged in commercial<br />
activities in e.g. the insurance, pension,<br />
banking and telecommunications. This may be an<br />
area that may be reviewed as it has been reviewed<br />
through a High Court judgment in Zambia as well<br />
as through the Zambian Competition and Consumer<br />
Protection Act of 2003. Under Section 3 of<br />
the Zambian Competition and Consumer Protection<br />
Act of 2010, the Act does not apply to the State<br />
where there is a statutory monopoly but the law<br />
does apply where the State is engaged in commercial<br />
activities in a sector that is open to com-<br />
<br />
remote possibility under the Zambian competition<br />
regime. Judge Philip Musonda of the High Court<br />
of Zambia 36 anyhow ruled thus:<br />
“...Sovereign States are entitled to immunity in respect<br />
of its Governmental acts, but not in respect<br />
of its commercial transactions. Every commercial<br />
undertaking engaged in the provision of goods<br />
and services is amenable to the Commission (author’s<br />
emphasis)... In a nutshell, all commercial<br />
undertakings are regulable by the Commission, if<br />
such undertakings imperil consumer interests and<br />
I see no lacuna in the law…”<br />
2.2.2 Limitations in regulated sectors<br />
The FCC does not have jurisdiction to deal with<br />
competition issues in sectors where there is a<br />
<br />
Act, four key sector regulators have the exclusive<br />
mandate to deal with competition matters within<br />
their jurisdictions and it is not mandatory that they<br />
seek the counsel of the Commission. The regulators<br />
have the discretion whether to consult with<br />
the FCC or not. The exempted regulatory sectors<br />
are governed by the following Acts:<br />
(i) The Energy and Water Utilities Regulatory<br />
Authority Act, 2001 (EWURA Act);<br />
(ii) The Surface and Marine Transport Regulatory<br />
Act, 2001 (SUMATRA Act);<br />
(iii) Tanzania Civil Aviation Regulatory Authority<br />
Act, 2003 (TCAA Act);<br />
(iv) Tanzania Communications Regulatory<br />
Authority Act, 2003 (TCRA Act).<br />
EWURA administers 8 separate legislations 37 dealing<br />
with water, petroleum and electricity matters in<br />
TANZANIA