CHAPTER 417
COMPETITION AND CONSUMER PROTECTION ACT

Arrangement of Sections

   Section

PART I
PRELIMINARY

   1.   Short title

   2.   Interpretation

   3.   Application

PART II
THE COMPETITION AND CONSUMER PROTECTION COMMISSION

   4.   Continuation and re-naming of Zambia Competition Commission

   5.   Functions of Commission

   6.   Executive Director and other staff

   7.   Inspectors

PART III
RESTRICTIVE BUSINESS AND ANTI-COMPETITIVE TRADE PRACTICES

   8.   Prohibition of anti-competitive practice, agreement or decision

   9.   Horizontal agreements prohibited per se

   10.   Vertical agreements prohibited per se

   11.   Severability

   12.   Other horizontal and vertical agreements

   13.   Inter-connected bodies corporate

   14.   Share of supply threshold for authorisation of restrictive agreements

   15.   Share of supply threshold for establishing existence of dominant position

   16.   Prohibition of abuse of dominant position

   17.   Determination of relevant product market

   18.   Application for exemption

   19.   Determination of application for exemption

   20.   Amendment of exemption

   21.   Revocation of exemption

   22.   Exemption in respect of professional rules

   23.   Publication of grant or revocation of exemption

PART IV
MERGERS

   24.   Definition of merger

   25.   Reviewable mergers

   26.   Threshold for authorisation of proposed merger

   27.   Other mergers subject to review

   28.   Negative clearance

   29.   Market assessment

   30.   Competition assessment

   31.   Public interest assessment

   32.   Period allowed for assessment

   33.   Undertakings on proposed merger

   34.   Determination of proposed merger

   35.   Revocation of merger

   36.   Compliance with other laws

   37.   Offences relating to mergers

PART V
MARKET INQUIRIES

   38.   Initiation of market inquiry

   39.   Purpose of market inquiry

   40.   Powers of investigation in connection with market inquiry

   41.   Action to be taken following market inquiry

PART VI
SECTOR REGULATED ACTIVITIES

   42.   Application of Act to sector regulated activities

   43.   Memorandum of understanding with sector regulators

   44.   Market inquiry into regulated sector

PART VII
CONSUMER PROTECTION

   45.   Definition of unfair trading practice

   46.   Prohibition of unfair trading practice

   47.   False or misleading representation

   48.   Display of disclaimers prohibited

   49.   Prohibition of supply of defective and unsuitable goods and services

   50.   Product labelling

   51.   Price display

   52.   Consumer product safety

   53.   Unfair contract term

   54.   Complaints on unfair contract term or trading practices, defective goods, misrepresentations, etc.

PART VIII
INVESTIGATIONS AND DETERMINATION BY COMMISSION

   55.   Investigations by Commission

   56.   Decision not to investigate

   57.   Consent agreement and undertaking

   58.   Directions relating to restrictive agreements

   59.   Directions relating to distortion, prevention or restriction of competition

   60.   Appeals

   61.   Remedies in merger control

   62.   Interim measures

   63.   Review of directions and undertakings

   64.   Enforcement of directions and undertakings

   65.   Enforcement of competition law at request of foreign competition authority

   66.   Regulations relating to investigations

PART IX
THE COMPETITION AND CONSUMER PROTECTION TRIBUNAL

   67.   Establishment of Competition and Consumer Protection Tribunal

   68.   Functions of Tribunal

   69.   Secretariat of Tribunal

   70.   Proceedings of Tribunal

   71.   Powers of Tribunal

   72.   False evidence

   73.   Determination of Tribunal in respect of mergers

   74.   Costs

   75.   Appeal to High Court

   76.   Expenses of Tribunal

   77.   Allowances of members and secretariat

   78.   Rules

PART X
GENERAL PROVISIONS

   79.   Leniency programme

   80.   Jurisdiction over acts committed outside Zambia

   81.   No execution on property of Commission

   82.   General penalty

   83.   Offences by body corporate or unincorporate body

   84.   Commission to issue guidelines

   85.   Dissemination of information

   86.   Fines

   87.   Regulations

   88.   Repeal of Act 18 of 1994

      FIRST SCHEDULE

      SECOND SCHEDULE

AN ACT

to continue the existence of the Zambia Competition Commission and re-name it as the Competition and Consumer Protection Commission; safeguard and promote competition; protect consumers against unfair trade practices; provide for the establishment of the Competition and Consumer Protection Tribunal; repeal and replace the Competition and Fair Trading Act, 1994; and provide for matters connected with, or incidental to, the foregoing.

[16th August, 2010]

Act 24 of 2010,

Act 9 of 2013.

PART I
PRELIMINARY

1.   Short title

This Act may be cited as the Competition and Consumer Protection Act.

2.   Interpretation

   (1) In this Act, unless the context otherwise requires—

“acquired” means acquired by takeover, purchase of shares or assets, or any other means through which an enterprise obtains, secures or gains a legal interest in another independent enterprise;

“agreement” means any form of agreement, whether or not legally enforceable, between enterprises which is implemented or intended to be implemented in Zambia and includes an oral agreement or a decision by a trade association or an association of enterprises;

“assets” in relation to an enterprise, includes physical assets, businesses, shares and other financial securities, brands and intangible assets including goodwill, intellectual property rights and knowhow;

“bid rigging” means a horizontal agreement between enterprises where—

      (a)   one or more parties to the agreement agrees not to submit a bid in response to a call for bids; or

      (b)   the parties to the agreement agree upon the price, terms or conditions of a bid to be submitted in response to a call for bids;

“Board” means the Board of the Commission constituted under paragraph (1) of the First Schedule;

“Chairperson” means the person appointed as Chairperson of the Board under paragraph (1) of the First Schedule;

“Commission” means the Competition and Consumer Protection Commission referred to under section 4,

“company” has the meaning assigned to it in the Companies Act;

“concerted practice” means a practice which involves some form of communication or coordination between competitors falling short of an actual agreement but which replaces their independent action and restricts or lessens competition between them;

“confidential information” means trade, business, commercial or industrial information that belongs to an enterprise, has a particular economic value and is not generally available to, or known by, others;

“consumer” means—

      (a)   for the purposes of Part III, any person who purchases or offers to purchase goods or services supplied by an enterprise in the course of business, and includes a business person who uses the product or service supplied as an input to its own business, a wholesaler, a retailer and a final consumer; and

      (b)   for the purposes of the other Parts of this Act, other than Part III, any person who purchases or offers to purchase goods or services otherwise than for the purpose of re-sale, but does not include a person who purchases goods or services for the purpose of using the goods or services in the production and manufacture of any other goods for sale, or the provision of another service for remuneration;

“distribution” means any act by which goods are sold or services supplied for consideration;

“dominant position” means a situation where an enterprise or a group of enterprises possesses such economic strength in a market as to make it possible for it to operate in that market, and to adjust prices or output, without effective constraint from competitors or potential competitors;

“enterprise” means a firm, partnership, joint-venture, corporation, company, association and other juridical persons, which engage in commercial activities, and includes their branches, subsidiaries, affiliates or other entities, directly or indirectly, controlled by them;

“essential facility” means an infrastructure or resource that cannot reasonably be duplicated, without access to which competitors cannot reasonably provide goods or services to their customers;

“Executive Director” means the person appointed as Executive Director under section 6,

“former Commission” means the Zambia Competition Commission established under the repealed Act,

“goods or products” includes services, buildings and other structures,

“group” in relation to an enterprise that is a company, means that company, any other company that is its holding company or subsidiary and any other company that is a subsidiary of the holding company or a single economic entity;

“horizontal agreement” means an agreement between enterprises each of which operates, for the purpose of the agreement, at the same level of the market and would normally be actual or potential competitors in that market;

“inter connected” in relation to bodies corporate, has the meaning assigned to it under sub-section (2);

“inspector” means a person appointed as inspector under section 7;

“irreparable injury” means injury which is substantial and can never be adequately remedied or atoned for by damages;

“market” in relation to any goods or services, includes a market for those goods or services and other goods or services that are substitutable for, or otherwise competitive with, the goods or services;

“merger” has the meaning assigned to it in section 24;

“micro business enterprise” has the meaning assigned to in the Zambia Development Agency Act, 2006;

“negative clearance” means the certification by the Commission that an otherwise anti-competitive conduct can be allowed under conditions specified by the Commission;

“per se” in relation to a prohibited practice, means a practice which is prohibited in all circumstances so that it is not necessary for the Commission to demonstrate that it has anticompetitive effects;

“price” means a charge of any description;

“professional association” means the controlling body established by, or registered under, any law, or recognised by the Commission as fulfilling similar functions on behalf of its members, in respect of a profession;

“re-sale price maintenance” means an agreement between a supplier and a dealer whose object or effect is, directly or indirectly, to fix a minimum selling price to be used by the dealer when re-selling goods to customers;

“regulator” means a regulatory body or agency, or a Government department that exercises functions of prudential, technical or economic regulation on the basis of statutory powers;

“repealed Act” means the Competition and Fair Trading Act, 1994;

“sale” includes an agreement to sell or offer for sale, the furnishing of a quotation, whether verbally or in writing, and any other act or notification by which willingness to enter into any transaction for sale is expressed;

“service” includes the sale of goods, where the goods are sold in conjunction with the rendering of a service;

“services” includes the carrying out and performance on a commercial basis of any engagement, whether professional or not, other than the supply of goods, but does not include the rendering of any services under a contract of employment;

“small claims court” has the meaning assigned to it in the Small Claims Courts Act;

“small business enterprise” has the meaning assigned to it in the Zambia Development Agency Act, 2006;

“statutory monopoly” means a commercial undertaking or an activity conducted by an entity, whether or not owned wholly or partly by the State, on the basis of statutory provisions that preclude other entities from conducting the same activity;

“subsidiary” has the meaning assigned to it in the Companies Act;

“supply” includes, in relation to—

      (a)   goods, the supply, including resupply, by way of sale, exchange, lease, hire or hire-purchase of the goods; and

      (b)   services, the provision by way of sale, grant or conferment of the services;

“Tribunal” means the Competition and Consumer Protection Tribunal established under section 67;

“turnover” means the latest audited gross sales of an enterprise;

“undertaking” means a commitment, promise or other future conduct that a person or enterprise provides to the Commission in order to address any concern raised by the Commission;

“vertical agreement” means an agreement between enterprises each of which operates, for the purposes of the agreement, at a different level of the production or distribution chain and relates to the conditions under which the parties may purchase, sell or resell certain goods or services;

“Vice-Chairperson” means the person appointed as Vice-Chairperson of the Board under paragraph (1) of the First Schedule; and

“Zambia Bureau of Standards” means the Zambia Bureau of Standards established under the Standards Act.

   (2) Any two or more bodies corporate are to be treated as interconnected if one or more of them is a subsidiary or are subsidiaries of the other, or if all of them are subsidiaries of the same body corporate.

3.   Application

   (1) Except as otherwise provided for in this Act, this Act applies to all economic activity within, or having an effect within, Zambia.

   (2) This Act binds the State insofar as the State or an enterprise owned, wholly or in part, by the State engages in trade or business for the production, supply, or distribution of goods or the provision of any service within a market that is open to participation by other enterprises.

   (3) This Act shall not apply to—

      (a)   an agreement or conduct insofar as it relates to intellectual property rights including the protection, licensing or assignment of rights under, or existing by virtue of, a law relating to copyright, design rights, patents or trade marks;

      (b)   activities of employers or an agreement to which employers are party, insofar as it relates to the remuneration, terms or conditions of employment of the employees;

      (c)   activities of trade unions and other associations directed at advancing the terms and conditions of employment of their members;

      (d)   concerted conduct designed to achieve a non-commercial socio-economic objective or similar purpose; and

      (e)   the business of any enterprise exercising a statutory monopoly which precludes the entry of another enterprise into the relevant market in Zambia:

Provided that—

      (i)   the enterprise does not enter into an agreement that has the purpose of restricting competition;

      (ii)   the conduct of the enterprise does not, in itself or in conjunction with another enterprise, amount to an abuse of a dominant position; or

      (iii)   the enterprise, if it wishes to enter into a merger transaction, is in compliance with the provisions of this Act relating to mergers.

   (4) Notwithstanding paragraph (a) of sub-section (3), the Commission may apply the provisions of this Act to an agreement or conduct, where it has reasonable grounds to believe that the agreement or conduct involves a practice that

      (a)   is prohibited under sub-section (1) of section 9 or sub-section (1) of section 10; or

      (b)   disproportionately restricts or prevents competition.

PART II
THE COMPETITION AND CONSUMER PROTECTION COMMISSION

4.   Continuation and re-naming of Zambia Competition Commission

   (1) The Zambia Competition Commission established under the repealed Act shall continue to exist as it established under this Act and is for purposes of this Act hereby re-named the Competition and Consumer Protection Commission.

   (2) The Commission shall be a body corporate with perpetual succession and a common seal, capable of suing and being sued in its corporate name and with power, subject to the provisions of this Act, to do all such acts and things as a body corporate may, by law, do or perform.

   (3) The provisions of the First Schedule apply to the Commission.

5.   Functions of Commission

The functions of the Commission are to—

      (a)   review the operation of markets in Zambia and the conditions of competition in those markets;

      (b)   review the trading practices pursued by enterprises doing business in Zambia;

      (c)   investigate and assess restrictive agreements, abuse of dominant positions and mergers;

      (d)   investigate unfair trading practices and unfair contract terms and impose such sanctions as may be necessary;

      (e)   undertake and publish general studies on the effectiveness of competition in individual sectors of the economy in Zambia and on matters of concern to consumers;

      (f)   act as a primary advocate for competition and effective consumer protection in Zambia;

      (g)   advise Government on laws affecting competition and consumer protection;

      (h)   provide information for the guidance of consumers regarding their rights under this Act;

      (i)   liaise and exchange information, knowledge and expertise with competition and consumer protection authorities in other countries;

      (j)   advise the Minister on agreements relevant to competition and consumer protection and on any other matter relating to competition and consumer protection;

      (k)   cooperate with and assist any association or body of persons to develop and promote the observance of standards of conduct for the purpose of ensuring compliance with the provisions of this Act; and

      (l)   do all such acts and things as are necessary, incidental or conducive to the better carrying out of its functions under this Act.

6.   Executive Director and other staff

   (1) The Board shall appoint an Executive Director on such terms and conditions as the Board may determine.

   (2) The Executive Director shall be the chief executive officer of the Commission and shall be responsible, under the direction of the Board, for the day-to-day administration of the Commission.

   (3) The Executive Director shall be an ex-officio member of the Board.

   (4) The Board may appoint, on such terms and conditions as it may determine, such other staff as it considers necessary for the performance of the Commission’s functions under this Act.

7.   Inspectors

   (1) The Board may appoint any suitable person to be an inspector for the purposes of ensuring compliance with this Act, on such terms and conditions as the Board may determine.

   (2) The Board shall provide an inspector with a certificate of appointment in the prescribed form which shall be prima facie evidence of the inspector’s appointment as such.

   (3) An inspector shall, in performing any function under this Act—

      (a)   be in possession of the certificate of appointment referred to under sub-section (2); and

      (b)   show the certificate of appointment to any person who requests to see it or is subject to an investigation under this Act.

   (4) An inspector may, with a warrant, at any reasonable time—

      (a)   enter and search any premises occupied by an enterprise or any other premises, including a private dwelling, where information or documents which may be relevant to an investigation may be kept;

      (b)   search any person on the premises if there are reasonable grounds for believing that the person has personal possession of any document or article that has a bearing on the investigation:

Provided that a person shall only be searched by a person of the same sex;

      (c)   examine any document or article found on the premises that has a bearing on the investigation;

      (d)   require information to be given about any document or article by—

      (i)   the owner of the premises;

      (ii)   the person in control of the premises;

      (iii)   any person who has control of the document or article; or

      (iv)   any other person who may have the information;

      (e)   take extracts from, or make copies of, any book or document found on the premises that has a bearing on the investigation;

      (f)   use any computer system on the premises, or require assistance of any person on the premises to use that computer system, to—

      (i)   search any data contained in, or available to the computer system;

      (ii)   reproduce any record from the data; or

      (iii)   seize any output from the computer for examination and copying; and

      (g)   attach and, if necessary, remove from the premises for examination and safeguarding any document or article that appears to have a bearing on the investigation.

   (5) An inspector who removes any document or article from any premises under paragraph (g) of sub-section (4) shall—

      (a)   issue a receipt for the document or article to the owner of, or person in control of, the premises; and

      (b)   return the document or article as soon as practicable after achieving the purpose for which it was removed.

   (6) A person who—

      (a)   delays or obstructs an inspector in the performance of the inspector’s functions;

      (b)   refuses to give an inspector such reasonable assistance as the inspector may require for the purpose of exercising the inspector’s powers; or

      (c)   gives an inspector false or misleading information in answer to an inquiry made by the inspector;

commits an offence and is liable, upon conviction, to a fine not exceeding two hundred thousand penalty units or to imprisonment for a period not exceeding two years, or to both.

   (7) An inspector shall furnish the Commission with a written report and any other information relating to an inspection, as the Commission may require.

   (8) Nothing in this section requires a person to disclose or produce information or a document, if the person would in an action in a court be entitled to refuse to disclose or produce the information or document.

PART III
RESTRICTIVE BUSINESS AND ANTI-COMPETITIVE TRADE PRACTICES

8.   Prohibition of anti-competitive practice, agreement or decision

Any category of agreement, decision or concerted practice which has as its object or effect, the prevention, restriction or distortion of competition to an appreciable extent in Zambia is anti-competitive and prohibited.

9.   Horizontal agreements prohibited per se

   (1) A horizontal agreement between enterprises is prohibited per se, and void, if the agreement—

      (a)   fixes, directly or indirectly, a purchase or selling price or any other trading conditions;

      (b)   divides markets by allocating customers, suppliers or territories specific types of goods or services;

      (c)   involves bid rigging, unless the person requesting the bid is informed of the terms of the agreement prior to the making of the bid;

      (d)   sets production quotas; or

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