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TANZANIA 6.3 Areas requiring urgent technical assistance The FCC submitted that they required technical assistance in the following areas: (i) Cartel investigation techniques, in particular how to carry out a dawn raid, evidence gathering and handling. (ii) In view of the exemption of intellectual property rights under the Act, the interface and interventions required where there is an abuse of IPRs in the market place. (iii) Quantitative/Economic analysis in abuse of dominance (e.g. excessive pricing, predatory pricing and models thereto) and merger cases (e.g. econometric testing and future merger scenario simulations. (iv) Prosecution and evidence handling in competition matters (e.g. use of local versus international expert evidence), dealing with persons who breach competition law but are outside the FCC jurisdiction. (v) Effective consumer protection and case management. 6.4 Other supportive areas for technical assistance Other important aspects of the institutional arrangement in the United Republic of Tanzania that require technical assistance were observed to include the following: (i) The Fair Competition Tribunal The FCT has not received as much exposure and training as the FCC. There is need to train and expose the Registrar of the FCT to international best practices. All staff of the FCT would also need to be trained on competition matters so that they can functions of the FCT members also needs international expert assistance and exposure through attachments, secondments and perhaps extend it to case analysis expert who can be resident at the (ii) The National Consumer Advisory Council and other independent consumer advocacy groups 81 The role of the NCAC is critical in the competition process as it is the voice of the consumers. There is need to ensure that the NCAC is properly trained and exposed to be able to usefully contextualize the decisions of the FCC, the FCT and other regulators and how those decisions affect consumers. With only one staff and no support staff, the NCAC requires urgent assistance for it to live up to its expected role in the competition and consumer policy implementation system of the United Republic of Tanzania. (iii) Civil Service/Technocrats in Rationale for Competition Policy and its role in industrial/ economic development There is a need to train the technocrats (both in the civil and public service) on the role of com- lack of useful appreciation and/or an indifferent approach by policymakers and technocrats does affect the effective implementation of competition etary allocations and thematic priorities in the national development system. (iv) Academicians, economists, research institutions, think tanks The FCC needs to be assisted to engage with the academicians and research institutions to develop competition studies that would be used in enforcement and primarily advocacy efforts. While the United Republic of Tanzania has a wealth of highly skilled and educated people, competition law has not been a part and parcel of their edu- from sound research work if its circle of prospective researchers is not technically skilled to carry out desired competition and other market studies. (v) The Legal Fraternity The legal fraternity and the judiciary (magistrates, judges) do require technical training in handling nal say on the inculcation of a competition culture in the country through the decisions they would make on appeals. Assistance from multilateral organizations over a sustained period of time would assist to spread the rationale for competition policy and instil a sense of appreciation of the trade. TANZANIA
82 VOLUNTARY PEER REVIEW OF CLP: A TRIPARTITE REPORT ON THE UNITED REPUBLIC OF TANZANIA – ZAMBIA – ZIMBABWE 7.0 FINDINGS AND POSSIBLE POLICY OPTIONS 7.1 implementation of competition law needs to be in the law, as well as through some improvements in the legal framework. The FCC may currently be limited in effective enforcement of the FCA due to express exemptions from the application of the FCA of selected but key regulated sectors, such as telecommunications, energy (petroleum, water and gas), surface and marine transport, aviation, crop marketing boards and any other subsequent legislation thereafter. There is also a problem of restricting the enforcement of Section 8 and limiting the scope to an “agreement” without the inclusion of decisions, conduct or behaviour of actors in a market. The rule of reason approach for hard-core horizontal agreements would also require revision and alignment with the international best practices. While the law calls for punishment to Directors and shareholders of a company, there is no mechanism of how these would be dealt with under the FCA. 7.2 The following recommendations are made: A. INSTITUTIONAL ISSUES AND AGENCY EFFECTIVENESS RECOMMENDATION REQUIRED ACTION RESPONSIBILITY 1. Funding to the FCC and the FCT must be predictable and implementable as provided for under Section 78(c) of the FCA There must be a mandatory provision to deal with remittance of funds to the FCC and FCT and it should not be discretional. There must be an appeal process to secure the funds. 2. Consumer protection NCAC replicates the advocacy functions of the Commission. Its staff and funds can be absorbed in an expanded consumer protection, advocacy and anti-counterfeit division within FCC – or make NCAC an enforcement agency for consumer protection as well as advocacy. 3. Appeals to the Minister where a regulator engages in anticompetitive conduct Under Section 96(3) of the Act, the FCC is expected to appeal to the Minister where a sector regulator makes an anticompetitive decision. This appeal would better lie with the Tribunal, which would be better B. ANTI-COMPETITIVE TRADE PRACTICES Ministry/FCC Minister/FCC/NCAC FCC/Tribunal/Minister RECOMMENDATION REQUIRED ACTION RESPONSIBILITY 4. Inclusion of vertical agreements in the law Amendment to the Law to include conduct such as tied selling, resale price maintenance, etc. FCC 5. Enumeration of conduct to be considered Amendment to the law. In the interim, there is need to have clear FCC misuse of market power guidelines on this other than the ones contained in the merger guidelines. 6. Introduce joint/combined dominance in the FCC FCA exercising dominance in a market may be cited for joint dominance. 7. Introduce a new provision to deal with buyer power in the Act to address concerns raised in the agricultural sector Inclusion of buyer power FCC/Minister 8. Need to have a more exhaustive list of Expansion of the list under Section 9 to include market allocation, FCC horizontal/cartel arrangements customer allocation and output restriction. 9. There is need to remove the tying of intention Intention and negligence should not be of importance to cartel behav- FCC and negligence to cartel conduct under Section 9(4) of the FCA iour and therefore section 9(4) should be removed from the law. 10. Issuance of Summons when Commission Summons under Section 71 should ideally be issued only when FCC wants information person/s refuse or are not able to voluntarily submit the information.
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UNITED NATIONS CONFERENCE ON TRADE
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UNITUNITED NATIONS CONFERENCE ON TR
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2 VOLUNTARY PEER REVIEW OF CLP: A T
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COMPARATIVE ASSESMENT COMPARATIVE A
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PREFACE This comparative assessment
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PREFACE agreements. . In the United
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PREFACE Finally in the United Repub
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PREFACE be set at a percentage of t
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PREFACE the market price but constr
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PREFACE (d) the extent to which the
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PREFACE pendence is maintained and
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PREFACE the effectiveness of the or
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PREFACE practical solutions, for ex
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PREFACE In addition to formal coope
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ZIMBABWE FULL REPORT ZIMBABWE
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ZIMBABWE TABLE OF CONTENTS PREFACE
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ZIMBABWE This report is part of the
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ZIMBABWE With the growing political
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ZIMBABWE of restrictive practices,
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ZIMBABWE competition authorities do
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ZIMBABWE divided according to geogr
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ZIMBABWE The Commission in 2006 whi
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ZIMBABWE to take care of themselves
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ZIMBABWE (under Section 9); basical
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ZIMBABWE Full scale investigation i
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ZIMBABWE (ii) to produce any book,
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ZIMBABWE The fact that CTC has a co
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ZIMBABWE tariat of technocrats, who
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ZIMBABWE Table 2: Number of Competi
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ZIMBABWE Regarding the handling of
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ZIMBABWE (Emphasis by the author) b
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ZIMBABWE Section 5 (1) (f) that pro
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ZIMBABWE Whilst the arguments can b
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ZIMBABWE Anti competitive agreement
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ZIMBABWE by conducting its case det
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