a tripartite report - Unctad

48 VOLUNTARY PEER REVIEW OF CLP: A TRIPARTITE REPORT ON THE UNITED REPUBLIC OF TANZANIA – ZAMBIA – ZIMBABWE
(b) the economic circumstances of the relevant
market including the market shares of persons
supplying or acquiring goods or services in
the market, the ability of those persons to
expand their market shares and the potential
for new entry into the market.
While the law does not provide the criteria to be
applied to determine that an agreement “appreciably”
prevents, restricts or distorts competition,
the process of determining harm on competition
is contained in the Merger Guidelines. 43 In Arusha
Municipal Council case, the matter was for instance
“exclusive rights,” which are not expressly captured
under the Act or in any of the Commission guidelines.
In a landmark Serengeti Breweries Limited v Tanzanian
Breweries Limited 44 , the FCC discussed Section
8(1) of the FCA as follows:
The word object as used in that provision means the subjective intention of parties when entering into that agreement.
Where an agreement has an object of restricting competition it is not very necessary to establish that its
effect would also have an anticompetitive effect in competition under section 8(1) of the FCA, 2003. Subsection 6
of objects of that agreement. Agreements considered to have
these are considered as illegal per se in accordance with Section 9 of FCA, 2003.
When an agreement does not have the object (subjective intention) of preventing, restricting or distorting competition
it is necessary to consider its effect or likely effect. When looking on the effect or likely effect it is necessary to
conduct an analysis of the agreement’s effect in the market before concluding that there is an infringement.
Oxford Advanced Learner’s Dictionary, 6th Edition, by A.S. Hornby, published by Oxford University Press, 2001. The
Dictionary provides the meaning of the three words as follows:
Prevent – “to stop something from happening (pg 922)”.
Restrict – “to limit the size, amount or range of something”, “to stop something from moving freely”, “to allow
yourself or somebody to have only a limited amount of something or to do only a particular kind of activity (pg
1004)”.
Distort – “to change the shape, appearance or sound of something so that it is strange or not clear”, “to twist or
change facts, ideas, etc, so that they are no longer correct or true (pg 338).”
Later on in the same case, the FCC explained the
following 45 :
The object, effects and likely effects are in alternative
and not mutually exclusive requirements for
tions
8 and 9 of the FCA, 2003. This is clear even
from the European Court of Justice decision of
Societe Technigue Miniere v. Maschinenbau Ulm 46
which stated that the words: “object and effects
were to be read disjunctively, so that it is necessary
to consider what the object of an agreement
is; only if it is not clear that the object of an
agreement is to harm competition it is necessary
to consider whether it might have the effect of
doing so”
The FCC did not however demonstrate and show
how, in this case, the application of the word “appreciably”
to the extent of preventing, restricting
or distorting competition. Section 8(1) does not
just deal with agreements that may prevent, restrict
or distort competition rather those that “appreciably”
do so.
The law proceeds to highlight that an agreement
in contravention of this section is unenforceable
except to the extent the provisions of the agreement
causing it to be in contravention of the section
are severable from the other provisions of the
agreement. Subsection three goes further to hold
a rebuttable presumption47 that unless proved
otherwise, it shall be presumed that an agreement
does not have the object, effect or likely effect of
appreciably preventing, restricting or distorting
competition if none of the parties to the agreement
has a dominant position in a market affected
by the agreement and either where the combined
shares of the parties to the agreement of each
market affected by the agreement is 35 per cent