a tripartite report - Unctad

60 VOLUNTARY PEER REVIEW OF CLP: A TRIPARTITE REPORT ON THE UNITED REPUBLIC OF TANZANIA – ZAMBIA – ZIMBABWE
conduct in contravention of this Act or to take actions
to comply with this Act, and shall specify the
time for compliance with the order and the duration
of the order. The FCC may make an interim
compliance order pending a proper consideration
of a matter if the Commission is of the opinion that
there is an imminent danger of substantial damage
to a person if a threatened or likely offence
is committed or there are other good reasons for
making such an order 65 .
Under Section 58(5), the FCC has the powers to
a person has acquired shares or other assets in
breach of section 11(1) on mergers, the Commission
may make an order at anytime within three
years after the acquisition: requiring the acquirer
to dispose of some or all of the shares or assets
the order; or declaring the acquisition to be void,
requiring the acquirer to transfer some or all of the
shares or assets back to the person from whom
the acquirer acquired the shares or assets and requiring
the vendor to refund to the acquirer some
or all of the amounts received by the vendor in respect
of the acquisition, as the Commission speci-
FCC entered into one Compliance Agreement
with East Africa Breweries Limited which in-
This Compliance agreement involved a merger
transaction between East African Breweries
Limited (EABL) and Serengeti Breweries
its shares within Tanzania Breweries Limited
before it would consummate its merger. This
condition took a longer time to be implemented
thus led to FCC and EABL entering
into an agreement whereby a time was speci-
condition.
has committed an offence against this Act (other
than under Parts VI and VII dealing with implied
conditions in consumer contracts and manufacturer’s
obligations respectively), the Commission
may order that person to publish, in such manner
and within such time as the Commission sees
appropriate relating to the offence. A compliance
order is made in writing specifying the grounds for
making the order. In Case 2 of 2009 66 , the Commission
ruled thus:
That pursuant to Section 58(1) and (3) Tanzanian
Breweries is hereby ordered to immediately refrain
from removing its competitor’s point of sale materials
at the outlets and entering into anticompetitive
branding agreements with outlet owners.
Further, in Fair Competition Commission v. Bank of
Africa, the Commission issued a compliance order
to Bank of Africa for failure to notify a merger. The
compliance order entailed the bank publishing a
notice of compliance to the public (in a newspaper)
a report expressing to the public how failure
to notify their merger was inconsistent with the
Act 67 .
The Commission may enter into an agreement in
writing, i.e. a “compliance agreement’, whereby
a person undertakes to the Commission to refrain
from conduct in contravention of this Act
the compliance agreement or for the disposal of
shares or assets and other matters, on such terms
and conditions as the Commission deems appropriate.
A compliance order shall be enforceable as
an order of the High Court.
2.5.2 Compensatory Orders
Under Section 59, any person who suffers loss or
damage as a result of an offence against this Act
(other than under Parts VI or VII dealing with implied
conditions in consumer contracts and manufacturer’s
obligations respectively 68 ) may apply to
the Commission for compensatory orders under
this section against the person who committed the
offence and any person involved in the offence,
whether or not they have been convicted of the
offence. Such application may be made at any
time within three years after the loss or damage
was suffered or the applicant became aware of the
offence, whichever is the later 69 . This is in contrast
to the substantive provision under Section 60(8) of
the Act which gives the Commission the leeway to
act upon an offence any time within six years after
the commission of the offence.
The law is silent about whether the Commission
can at its own initiative, issue a compensatory order.
For deterrent purposes and in the event that
the case under review was commenced by the