a tripartite report - Unctad

50 VOLUNTARY PEER REVIEW OF CLP: A TRIPARTITE REPORT ON THE UNITED REPUBLIC OF TANZANIA – ZAMBIA – ZIMBABWE
Conduct
Price Fixing
terms or conditions upon which, a party to an agreement supplies or acquires, or offers to supply or acquire, goods or
services, in competition with any other party to the agreement
Collective Boycott ‘’collective boycott by competitors’’ means: (i) to prevent a party to an agreement from supplying goods or services to
particular persons, or acquiring goods or services from particular persons, in competition with any other party to the
agreement; or (ii) to restrict or control the terms and conditions on which, or the circumstances in which, a party to an
agreement supplies goods or services to particular persons, or acquires goods or services from particular persons, in
competition with any other party to the agreement;
(c) ‘’output restrictions between competitors’’ means to prevent, restrict or control the production by a party to an agreement
of goods or services to be supplied in competition with any other party to the agreement;
Collusive Tendering
bid or tender by any of the parties to an agreement at an auction or in any tender or other form of bidding, in competition
with any other party to the agreement; or (ii) to prevent a party to an agreement from making a bid or tender at an auction
or in any tender or other form of bidding, in competition with any other party to the agreement.
Source: Section 9(2) of the FCA.
as matters that are per se anticompetitive, as expressed
by the title “Prohibition of certain agreements
irrespective of their effect on competition”.
this interpretation were voiced given that Section
9 refers to “the object, effect or likely effect of the
agreement” which generally is an indication for the
use of the rule of reason. However, it should be
highlighted that while the general prohibition of
Section 8 applies to an agreement “if the object,
effect or likely effect of the agreement is to appreciably
prevent, restrict or distort competition” Section
9 does not include the criterion of an appreciable
types of hard core cartels. In this way, the formulation
of Section 8 and Section 9 differ distinctively,
which together with the title of Section 9 appears
to justify the interpretation of Section 9 as a per se
prohibition of the listed types of agreements.
Furthermore, the FCC will have to demonstrate
that the agreement was done intentionally or negligently.
This process for horizontal agreements of
proving intention and negligence may have to be
reviewed as it provides an unnecessary analytical
process in proving a Section 8 case.
tween
5 per cent and 10 per cent of turnover of an
enterprises 50 . There is need to expand the scope
of the hardcore cartels. UNCTAD Model Law on
Competition (2004) has proposed a list that the
United Republic of Tanzania may borrow from, as
follows:
(b) Collusive Tendering
(c) Market or customer allocation
(d) Restraints on production and sale, including
by quota
(e) Concerted refusals to purchase
(f) Concerted refusals to sale
(g) Collective denial of access to an arrangement
which is crucial to competition.
that it does not state 5–10 per cent rather be in a
up to a maximum of 10 per cent” in order to ac-
ency
or other corroborating evidence.
Exemption Applications
Exemptions and exceptions are common in most
competition legislations. Exceptions according to
Section 14 have already been treated with under the
scope of application of the FCA. As to exemptions,
the FCA provides that the Commission may, upon
the application of a party to an agreement, grant an
exemption for that agreement, either unconditionally
or subject to such conditions as the Commission
cumstances
that both paragraph (a) and (b) apply:
(a) the agreement either contravenes section
9 or has, or is likely to have, the effect