a tripartite report - Unctad

52 VOLUNTARY PEER REVIEW OF CLP: A TRIPARTITE REPORT ON THE UNITED REPUBLIC OF TANZANIA – ZAMBIA – ZIMBABWE
pears to capture the collective or concerted anticompetitive
conduct – and to that extent Section
9. However, for future clarity, there would be need
dominance.
Generally, dominance is better dealt with under a
rule of reason basis than strictly tied to the mar-
has recommended that “Dominant position of
market power” refers to a situation where an enterprise,
either by itself or acting together with a
few other enterprises, is in a position to control
the relevant market for a particular good or service
or group of goods or services (Model Law on
Competition).
The following illustration of the concept of the
abuse of a dominant position was given in a case
of Serengeti Breweries Limited v Tanzanian Breweries
Limited. 52
The main difference between the provision of Section
10(1) and of Section 8(1) of the FCA, 2003 is
that, Section 10(1) centres on the object, effects or
within the market, while section 8(1) is based on
the agreements.
Section 5(6) of the FCA, 2003 to mean either a person
is acting alone in the market, that is the per-
of time; or the person’s share of the relevant market
exceeds 35 per cent.
For that reason it is clear that a dominant person
is presumed to have economic strength which
enables it to prevent effective competition being
maintained in the relevant market by affording
it the power to behave to an appreciable extent
independently of its competitors, customers and
ultimately consumers. The two main elements
provided under the provision of Section 5(6) are
the person’s ability to prevent, restrict and distort
behave independently.
Section 10 proceeds further to address the concept
of “misuse of market power” in the following
manner:
10(1) A person with a dominant position in a market
shall not use his position of dominance if the object,
effect or likely effect of the conduct is to appreciably
prevent, restrict or distort competition.
(2) If the Commission has granted an exemption under
section 12 for an agreement, conduct of a person
in making or giving effect to that agreement is
not prohibited by this section during the period of
the exemption.
(3) For the purposes of subsection (1), an object is
conduct even if it is only one of a number of objects
(4) Any person who intentionally or negligently acts
in contravention of the provisions of this section,
commits an offence.
on how to deal with misuse of market power and
guidelines shall be necessary in view of the central
role that misuse of market power plays in the
competition law of the United Republic of Tanzania.
However, a semblance of a guide is contained in the
merger guidelines. As the law does not specify instances
of abuse of market power such as excessive
pricing or predatory pricing, the Commission has
a greater latitude to include anything that would
be deemed to be an “abuse” or “misuse of market
power”. However, competition law best practices
and jurisprudence have a closed than open-ended
list. The advantage of not stating the abuse instances
for a competition authority is that it widens their
ability to deal with all possible instances of abuse.
The downside is that the lack of the law providing
for those express instances is that it makes the law
less transparent and certain for business. UNCTAD
Model Law on Competition may be a useful reference
point for inclusion of more elaborate provisions
to deal with misuse of market power.
In Case 2 of 2009, Serengeti Breweries Limited v
Tanzanian Breweries, the Commission used international
case law to determine what it would classify
as instances of “misuse of market”, as follows: