The Fair Competition (Amendment) Act, 2024
This Act may be cited as the Fair Competition (Amendment) Act, 2024, and it must be read together with the Fair Competition Act.
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About this statute
This Act may be cited as the Fair Competition (Amendment) Act, 2024, and it must be read together with the Fair Competition Act. This section generally amends the principal Act by replacing references to “court of competent jurisdiction” and “court” with “Commission” in specified sections, and by deleting the words “intentionally or negligently” in other specified sections. This section amends section 2 of the principal Act by replacing the definition of “consumer” and adding new definitions for several competition-law terms. This section amends section 5(6) by changing wording and setting a forty percent shares threshold in paragraph (b). This provision amends section 8(3) by replacing the figure “35” in paragraph (a) with the word “forty”.
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Provisions of The Fair Competition (Amendment) Act, 2024
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- 1 Verify source ↗
2. General amendments
This Act may be cited as the Fair Competition (Amendment) Act, 2024, and it must be read together with the Fair Competition Act.
1. This Act may be cited as the Fair Competition (Amendment) Act, 2024 and shall be read as one with the Fair Competition Act, hereinafter referred to as “the principal Act”. - 2 Verify source ↗
General amendments
This section generally amends the principal Act by replacing references to “court of competent jurisdiction” and “court” with “Commission” in specified sections, and by deleting the words “intentionally or negligently” in other specified sections.
2. The principal Act is amended generally, by- (a) deleting the words “court of competent jurisdiction” and “court” appearing in sections 25, 28, 33, 38, 39, 40, 41, 42, 43, 44, 47 and 59 and substituting for them the word “Commission”; and (b) deleting the words “intentionally or negligently” appearing in sections 8, 9, 10 and 11. Amendme nt of section 2 - 3 Verify source ↗
Amendment of section 2
This section amends section 2 of the principal Act by replacing the definition of “consumer” and adding new definitions for several competition-law terms.
3. The principal Act is amended in section 2, by- (a) deleting the definition of the term “consumer” and substituting for it the following: 3 No. 13 The Fair Competition (Amendment) Act, 2024 ““consumer” means a person who purchases or offers to purchase goods or services or a person who uses such goods or services with the approval of the buyer but does not include a person who purchases goods or services for the purpose of resale or using them in the production or manufacture of any goods or articles for sale;”; and (b) adding in its appropriate alphabetical order, the following: ““essential facility” means an infrastructure or resource reasonably be that cannot duplicated, and without access to which, competitors cannot reasonably provide goods or services to their customers; “cross subsidisation” means an internal transfer within an entity of profits resulting from one line of business to less profitable line of business; “loyalty discount and rebate” means a discount offered on a condition that the customer engages in a loyal purchasing behavior by repeatedly purchasing goods or services from the same supplier and refraining from other suppliers; to purchase “margin squeeze” means a pricing practice where the margin between the price at which a vertically integrated firm, which is dominant in an input market, sells a downstream product, and the price for which it sells the key input to competitors does not allow downstream competitors to compete effectively; “re-sale price or condition maintenance” means an agreement between a supplier and a re-seller whose object or effect or likely 4 No. 13 The Fair Competition (Amendment) Act, 2024 effect is, directly or indirectly, to fix a minimum selling price or condition to be used by the re-seller when re-selling goods or services to customers; and “vertical agreement” means an agreement between persons each of which operates, for the purpose of the agreement, at a different the production or distribution chain and relates to the conditions under which the parties may purchase, sell or re-sell certain goods or services;”. level of Amendme nt of section 5 Amendme nt of section 8 Amendme nt of section 9 - 4 Verify source ↗
Amendment of section 5
This section amends section 5(6) by changing wording and setting a forty percent shares threshold in paragraph (b).
4. The principal Act is amended in section 5(6), by- (a) deleting the words “the person” appearing in paragraph (a) and substituting for them the words “or with another person”; and (b) deleting paragraph (b) and substituting for it the following: “(b) the person’s shares in the relevant market, severally or jointly, exceeds forty percent.”. - 5 Verify source ↗
Amendment of section 8
This provision amends section 8(3) by replacing the figure “35” in paragraph (a) with the word “forty”.
5. The principal Act is amended in section 8(3) by deleting figure “35” appearing in paragraph (a) and substituting for it the word “forty”. - 6 Verify source ↗
Amendment of section 9
This section amends section 9 of the principal Act and adds a definition for “allocation of market or customer.”
6. The principal Act is amended in section 9- (a) in subsection (1), by- (i) deleting the word “or” appearing in paragraph (b); (ii) adding immediately after paragraph (a) the output following: “(b) competitors; (c) allocation of market or customer;”; and restrictions between (iii) renaming paragraphs (b) and paragraphs (d) and (e) respectively; (c) as (b) in subsection (2), by- 5 No. 13 The Fair Competition (Amendment) Act, 2024 (i) deleting a full stop appearing in paragraph (d)(ii) and replacing for it a semi colon and the word “and”; and (ii) adding immediately after paragraph (d) the following: “(e) “allocation of market or customer” means the allocation of a market or customer among competitors so as the choice of doing to defined a business within geographical territory, a defined product certain specified customers.”. category limit or Addition of section 9A - 7 Verify source ↗
Addition of section 9A
This section amends the principal Act by adding a new provision after section 9 headed “Leniency programme.”
7. The principal Act is amended by adding immediately after section 9 the following: “Leniency programme - 9A Verify source ↗
(1) The Commission may
The Commission may run a leniency programme that reduces or removes a penalty for a person who made a prohibited agreement if that person voluntarily discloses it and cooperates in the investigation.
9A.-(1) The Commission may operate a leniency programme by reducing or exonerating a penalty applicable to a person who engages in agreements prohibited under section 9, where such person voluntarily discloses the existence of the agreement and co- operates with the Commission in the investigation of the prohibited practice. leniency programme (2) The shall be as prescribed in the rules.”. Amendme nt of section 10 - 8 Verify source ↗
Amendment of section 10
This section amends section 10 of the principal Act and adds a new section 10A defining abuse of dominant position.
8. The principal Act is amended in section 10- (a) in subsection (1) by inserting between the words “to” and “appreciably”, the words “exploit customers or”; and by adding immediately after subsection (4), the following- (b) “(5) Abuse of dominant position under this section includes- (a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions; 6 No. 13 The Fair Competition (Amendment) Act, 2024 (b) limiting or restricting production, market outlets or market access, investment, innovation, technical distribution, development or technological progress the prejudice of consumers; to (c) predatory pricing; (d) margin squeeze; (e) cross subsidisation; (f) refusal to deal; (g) denial of access to an essential facility; (h) tying and bundling; (i) discrimination in price or trading conditions to the prejudice of suppliers or consumers; (j) loyalty discount and rebates that harm competition; (k) abuse of an intellectual property right; and (l) making agreements subject to acceptance supplementary conditions which by their nature the have no connection with subject matter.”. of Addition of section 10A - 9 Verify source ↗
Addition of section 10A
This section amends the principal Act by adding a new section headed “Prohibition of vertical agreement.”
9. The principal Act is amended by adding immediately after section 10 the following: “Prohibition of vertical agreement - 10A Verify source ↗
(1) A person shall not make
A person must not make or enforce an agreement that fixes resale prices, blocks access to supply or outlets, or restricts movement of goods or services between geographic areas.
10A.-(1) A person shall not make or give effect to an agreement which involves- (a) re-sale prices or conditions maintenance; customers (b) foreclosing or competitors from access to sources of supply or from access to outlets; or (c) restricting movement of 7 No. 13 The Fair Competition (Amendment) Act, 2024 goods or services between different geographical areas. (2) Notwithstanding subsection (1)(a), a person may recommend a minimum re-sale price to the reseller of goods or services if- (a) the supplier or producer makes it clear to the re-seller that the recommendation is not binding; and (b) the product has a price stated on the words and “recommended price” appear next to the stated price. it (3) A person who contravenes subsection (1) commits an offence.”. Amendme nt of section 11 Addition of section 11A - 10 Verify source ↗
Amendment of section 11
This section changes section 11(1) of the principal Act by replacing one phrase with “substantially lessens competition.”
10. The principal Act is amended in section 11(1) by deleting the words “creates or strengthens a position of dominance” and substituting for them the words “substantially lessens competition”. - 11 Verify source ↗
Addition of section 11A
This provision amends the principal Act by adding a new section after section 11 titled “Merger resulting from substantial public benefits.”
11. The principal Act immediately after section 11 the following: is amended by adding “Merger resulting from substantial public benefits - 11A Verify source ↗
(1) The Commission may
The Commission may approve a merger that would otherwise be prohibited if the merger is likely to create public benefits that outweigh the harm to competition.
11A.-(1) The Commission may approve a merger prohibited under section 11(1) upon satisfaction that the proposed merger is likely to result into substantial benefits to the public which would outweigh any detriment caused by the proposed merger on preventing, restraining or distorting competition. (2) In determining the substantial public benefits under subsection (1), the Commission shall consider the following factors: (a) the extent proposed to which merger the shall 8 No. 13 The Fair Competition (Amendment) Act, 2024 to contribute the greater efficiency in the allocation of resources; (b) the extent to which the proposed merger would, or is likely to, promote technical or economic progress and the transfer of skills, or otherwise improve the production or distribution of goods or the provision of in Mainland Tanzania; services failure and (c) the extent to which, the target firm faces actual or imminent financial the proposed merger offers the anti-competitive least alternative use of the assets of the business; (d) the extent to which the proposed merger shall boost exports from Mainland Tanzania or employment in Mainland Tanzania; to which to which (e) the extent the proposed merger shall affect a particular industrial sector or region; (f) the extent the proposed merger may affect national the in industries regional and international markets; and (g) the extent the proposed merger may affect the ability of small businesses to become competitive.”. to compete to which ability of 9 No. 13 The Fair Competition (Amendment) Act, 2024 Amendme nt of section 13 Amendme nt of section 33 Amendme nt of section 58 Amendme nt of section 59 Amendme nt of section 60 - 12 Verify source ↗
Amendment of section 13
This section changes the wording of section 13(1)(a), replacing the old dominance test with “substantially lessens competition”.
12. The principal Act is amended in section 13(1)(a) by deleting the phrase “is likely to create or strengthens a position of dominance” and substituting for it, the phrase “substantially lessens competition”. - 13 Verify source ↗
Amendment of section 33
Section 13 amends section 33 by replacing specified references to “judgment”/“judgement” with “an order”.
13. The principal Act is amended in section 33 by deleting the words “judgment”, “judgement”, “a judgement” and “the judgement” wherever they appear and substituting for the them the words “an order”. - 14 Verify source ↗
Amendment of section 58
This section amends section 58 of the principal Act by deleting specified words, substituting “judicial or quasi-judicial body” for “court” in one subsection, and deleting subsection (12).
14. The principal Act is amended in section 58, by- (a) deleting the words “(other than under Part VI or VII)” appearing in subsections (1) and (6); (b) deleting the words “at any time within ten years after the acquisition” appearing in the opening phrase of subsection (5); (c) deleting the word “court” appearing in subsection (11) and substituting for it the words “judicial or quasi-judicial body”; and (d) deleting subsection (12). - 15 Verify source ↗
Amendment of section 59
This provision amends section 59 of the principal Act by removing specified words, deleting subsection (6), and renumbering subsection (7) as subsection (6).
15. The principal Act is amended in section 59, by- (a) deleting the words “(other than under Part VI or VII)” appearing in subsection (1); (b) deleting subsection (6); and (c) renumbering subsection (7) as subsection (6). - 16 Verify source ↗
Amendment of section 60
This section amends section 60 so the Commission may fine people who commit offences under Parts VI and VII, with different minimums and maximums for body corporates and natural persons.
16. The principal Act is amended in section 60, by- (a) deleting the words “(other than under Part VI, Part VII or section 58, 59 or 88)” appearing in subsection (1); (b) adding immediately after subsection (1), the following: “(2) Notwithstanding the provisions of sections 58 and 59, the Commission may impose the following fine against a person who commits an offence under Parts VI and VII: (a) in case of a body corporate, a fine of 10 No. 13 The Fair Competition (Amendment) Act, 2024 not less than thirty million shillings but not exceeding fifty million shillings or 3 percent of his annual turnover the preceding year, in whichever is greater; and (b) in case of a natural person, a fine of not less than ten million shillings but not exceeding thirty million shillings or 1.5 percent of his annual turnover in the preceding year, whichever is greater.”; (c) deleting subsections (5) and (8); and (d) renumbering subsections (2), (3), (4), (6) and (7) as subsections (3), (4), (5), (6) and (7) respectively. Amendme nt of section 61 - 17 Verify source ↗
Amendment of section 61
A person aggrieved by the Tribunal’s decision under this section may appeal to the Court of Appeal within 30 days.
17. The principal Act is amended in section 61 by deleting subsection (8) and substituting for it the following: “(8) A person who is aggrieved by the decision of the Tribunal under this section may, within thirty days from the date of the decision, appeal to the Court of Appeal.”. Amendme nt of section 78 Amendme nt of section 83 - 18 Verify source ↗
Amendment of section 78
This section amends section 78(1) of the principal Act by adding “the Tanzania Shipping Agencies Corporation” into paragraph (c).
18. The principal Act is amended in section 78(1) by inserting the words “the Tanzania Shipping Agencies Corporation” between the words “Aviation Authority” and “and such other” appearing in paragraph (c). - 19 Verify source ↗
Amendment of section 83
Section 83 is amended so the Tribunal Chairman and three members serve four years, and the other three members serve three years.
19. The principal Act is amended in section 83- (a) by adding immediately after subsection (4) the following: “(5) The Chairman and three members of the Tribunal shall hold office for a period of four years and other three members shall hold office for a period of three years.”; (b) in subsection (5), by deleting the phrase “hold office for a period not exceeding three years as specified in the instrument of his appointment and shall”; and (c) renumbering subsections (5) and (6) as subsections 11 No. 13 The Fair Competition (Amendment) Act, 2024 Amendme nt of section 84 Amendme nt of section 85 Amendme nt of section 87 Amendme nt of section 91 (6) and (7) respectively. - 20 Verify source ↗
Amendment of section 84
This provision amends section 84(1) of the principal Act by deleting subsection (1) and redesignating the contents of subsection (2).
20. The principal Act is amended in section 84(1), by- (a) deleting subsection (1); and (b) designating the contents of subsection (2) as section - 21 Verify source ↗
Amendment of section 85
Section 21 amends section 85 so that, when carrying out its functions, the Tribunal has all the powers of the High Court.
21. The principal Act is amended in section 85 by deleting subsection (5) and substituting for it the following: “(5) The Tribunal shall, in the discharge of its functions, have all the powers of the High Court.”. - 22 Verify source ↗
Amendment of section 87
Section 87(1)(d) of the principal Act is amended to add “the Tanzania Shipping Agencies Corporation” after “Tanzania Civil Aviation Authority.”
22. The principal Act is amended in section 87(1)(d) by adding immediately after the words “Tanzania Civil Aviation Authority”, the words “the Tanzania Shipping Agencies Corporation”. - 23 Verify source ↗
Amendment of sections 91
This section amends section 91 of the principal Act by replacing the existing stay wording with a new formulation that allows the Tribunal to order a stay on application.
23. The principal Act is amended in section 91 by deleting the phrase “the order shall, unless the Tribunal otherwise orders, be stayed” and substituting for them the phrase “the Tribunal may upon application, order for stay”. Amendme nt of sections 96 - 24 Verify source ↗
Amendment of sections 96
This section amends section 96 of the principal Act by inserting “the Tanzania Shipping Agencies Act” into subsection (3).
24. The principal Act is amended in section 96 by inserting the words “the Tanzania Shipping Agencies Act” between the words “Civil Aviation Authority” and “and sector” appearing in subsection (3). Passed by the National Assembly on the 03rd September, 2024 NENELWA JOYCE MWIHAMBI Clerk of the National Assembly 12
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