COMPETITION AND CONSUMER PROTECTION ACT: INDEX TO SUBSIDIARY LEGISLATION
Competition and Fair Trading (Fees) Regulations
Competition and Consumer Protection (General) Regulations
Competition and Consumer Protection (Tribunal) Rules
COMPETITION AND FAIR TRADING (FEES) REGULATIONS
[Section 17]
Arrangement of Regulations
Regulation
1. Title
2. Fees
SI 1 of 1999,
SI 46 of 2006.
These Regulations may be cited as the Competition and Fair Trading (Fees) Regulations.
The fees set out in the Schedule are the prescribed fees for the matter mentioned therein.
SCHEDULE
[Paragraph 2]
[Sch subs by reg 2 of SI 46 of 2006.]
PRESCRIBED FEES
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Nature of Application |
Fee Units |
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1. For application for authorisation of: |
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(a) exclusive clearance under section 7(2) |
50,000 |
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(b) exclusive dealing under section 7(2)(c) |
50,000 |
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(c) full-time forcing, bundling or tying arrangements under section 7(2)(d) |
50,000 |
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(d) resale price maintenance under section 7(2) |
50,000 |
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(e) negative clearance under section 7(2) |
50,000 |
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2. Any other application not specifically mentioned |
50,000 |
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3. Lodgment fee for any application |
5,000 |
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4. Consultation with official of the Commission |
3,000 |
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5. Authorisation certificate |
3,000 |
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6. Replacement of authorisation certificate |
1,500 |
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7. Collating document and certification, for every folio |
1,500 |
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8. Application to hold extraordinary or special board meeting |
100,000 |
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9. Application for authorisation of a merger or taken under section 8 |
0.1% per cent of combined turnover or assets, which is higher |
NOTES:
1. The fees in this schedule shall not apply to micro enterprises and small enterprises as defined under section 2 of the Small Enterprises Development Act, Chapter 425 of the Laws of Zambia.
2. Where a small or micro-enterprise engages in a business arrangement with an enterprise, not defined as either a small or micro enterprise, such small or micro enterprise shall pay the requisite prescribed fees.
COMPETITION AND CONSUMER PROTECTION (GENERAL) REGULATIONS
[Section 87]
Arrangement of Regulations
Regulation
PART I
PRELIMINARY
1. Title
2. Interpretation
PART II
RELEVANT PRODUCT MARKET
3. Determination of relevant product market
PART III
MARKET INQUIRY
4. Market inquiry
5. Market inquiry process
PART IV
RESTRICTED BUSINESS PRACTICES
6. Application for authorisation of horizontal or vertical agreement
7. Application for exemption
PART V
MERGERS
8. Threshold for authorisation of proposed merger
9. Application for negative clearance
PART VI
INVESTIGATIONS
10. Authorisation of investigation
11. Notice of investigation
12. Unannounced raid on premises
13. Form of consent agreement
14. Undertakings
15. Investigation at request of foreign competition authority
PART VII
CONSUMER PROTECTION
16. Lodging of complaint
PART VIII
GENERAL PROVISIONS
17. Service of documents on Commission
18. Service of documents on person other than Commission
19. Service of notice by Commission
20. Inspectors
21. Fees
SI 97 of 2011.
PART I
PRELIMINARY
These Regulations may be cited as the Competition and Consumer Protection (General) Regulations.
In these Regulations, unless the context otherwise requires—
“agreement” has the meaning assigned to it in the Act;
“Board” means the Board of the Commission constituted in the First Schedule to the Act;
“Commission” means the Competition and Consumer Protection Commission established under section 4 of the Act;
“committee” means a committee constituted in the First Schedule to the Act;
“conduct” means an agreement, act, a practice or behaviour co-ordinated, expressly or by implication, under the Act;
“consent agreement” means an agreement entered into between the Commission and an enterprise pursuant to section 57 of the Act;
“consumer” has the meaning assigned to it in the Act;
“enterprise” has the meaning assigned to it in the Act;
“Executive Director” means the person appointed as Executive Director under section 6 of the Act;
“horizontal agreement” has the meaning assigned to it in the Act;
“inspector” means a person appointed as such under section 7 of the Act;
“inquiry manager” means a person appointed as such under regulation 5;
“merger” has the meaning assigned to it in the Act;
“negative clearance” has the meaning assigned to it in the Act;
“turnover” has the meaning assigned to it in the Act;
“undertaking” has the meaning assigned to it in the Act; and
“vertical agreement” has the meaning assigned to it in the Act.
PART II
RELEVANT PRODUCT MARKET
3. Determination of relevant product market
(1) The Commission shall, in determining the relevant product market, identify—
(a) the peculiar appearance, use, price range, quality characteristics, uniqueness and any other feature or characteristic of the product that sufficiently distinguishes it from other products;
(b) whether targeted consumers consider the product to be different in terms of, among others, benefits, taste or usage, to the extent that it affects purchase decisions;
(c) whether in the event of a shortage, lack of availability, a price increase or any other constraining factor, another product could be used or substituted by consumers for the same use;
(d) whether competitors have failed or are likely to fail to supply a similar product;
(e) the geographical location within Zambia in which the bulk of sales or supply of the product take place;
(f) the historical consumer behaviour, if any, related to the product; and
(g) the uniqueness of the production process of the product and the ease with which a different production process can be altered to produce the product.
(2) Notwithstanding sub-regulation (1), the Commission, in determining the relevant product market, may use any relevant research findings of third parties, conduct public inquiries, consider or adopt international best practice determinations of market definition, insofar as they are consistent with the Act and these Regulations and are practical to the Zambian situation, as it may determine.
PART III
MARKET INQUIRY
(1) The Commission may initiate a market inquiry based on—
(a) complaints made to it by enterprises, consumers or representative bodies;
(b) studies conducted by any relevant bodies on a particular sector;
(c) its own research;
(d) its experience in regulating restrictive business and anti-competitive trade practices; or
(e) representations made to it by the Government regarding a particular sector or type of agreement.
(2) The Commission shall, where it receives a complaint from a consumer under paragraph (a) of sub-regulation (1), before instituting a market inquiry, have reasonable grounds to believe that consumers are being treated unfairly by enterprises doing business in that sector with them.
(3) The Executive Director, a committee of the Board or the Board itself shall take the decision to institute a market inquiry.
(4) The Commission shall institute a market inquiry by testing any relevant information in its possession with, among others—
(a) international sources;
(b) market experts;
(c) competitors;
(d) consumers;
(e) trade associations;
(f) professional associations; or
(g) Government ministries and agencies.
(1) The Commission shall, where it decides to institute a market inquiry, inform the general public about the market inquiry by placing a notice on its website or in a daily newspaper of general circulation in Zambia.
(2) The notice referred to in sub-regulation (1) shall indicate the scope of, or the terms of reference for, the market inquiry and request all interested parties to make submissions to the Commission.
(3) The Executive Director may, where the Commission decides to institute a market inquiry, appoint a member of staff of the Commission or an inspector as an inquiry manager who shall be in charge of the market inquiry.
(4) The Executive Director or the inquiry manager shall send a written request for information to all parties that the Commission considers to have an interest in the subject matter of the inquiry.
(5) The Commission may hold meetings with the parties referred to in sub-regulation (4), so as to obtain further information or discuss points raised in any submissions received by it.
(6) The Commission shall, where it receives adverse third party concerns against an enterprise that it considers to be involved in the matters covered by a market inquiry, provide the enterprise with the full details of the adverse concerns, for confirmation.
(7) An enterprise may, at its request or at the request of the Commission, appear before the Commission to make any submissions relevant to a market inquiry, before the Commission makes its final determination on the market inquiry.
PART IV
RESTRICTED BUSINESS PRACTICES
6. Application for authorisation of horizontal or vertical agreement
An application for authorisation of a horizontal or vertical agreement shall be made in Form I set out in the First Schedule.
(1) An application for exemption from a prohibition under Part III of the Act shall be made in Form I set out in the First Schedule.
(2) An exemption granted pursuant to an application under sub-regulation (1), shall be in Form II set out in the First Schedule.
PART V
MERGERS
8. Threshold for authorisation of proposed merger
(1) A merger transaction shall require authorisation by the Commission where the combined turnover or assets, whichever is higher, in Zambia of the merging parties, is at least fifty million fee units in their latest full financial year, for which figures are available.
(2) An application for authorisation under sub-regulation (1), shall be made in Form I set out in the First Schedule.
9. Application for negative clearance
(1) An application for negative clearance as to whether a proposed merger requires the authorisation of the Commission shall be made in Form I set out in the First Schedule.
(2) A negative clearance granted pursuant to an application under sub-regulation (1), shall be in Form III set out in the First Schedule.
PART VI
INVESTIGATIONS
10. Authorisation or investigation
(1) An officer of the Commission who wishes to undertake an investigation under the Act shall apply to the Executive Director for authorisation of the investigation in Form IV set out in the First Schedule.
(2) For purposes of sub-regulation (1), the Executive Director’s written instruction to an officer or inspector of the Commission to undertake an investigation shall be deemed to be an authorisation for investigation.
The Commission may issue a person under investigation with a notice of investigation in Form V set out in the First Schedule.
12. Unannounced raid on premises
The Commission may apply to the court for a warrant authorising it to undertake an unannounced raid on the premises of an enterprise that it reasonably believes is contravening or has contravened the provisions of the Act and is likely to hide or destroy information when it knows that it is under investigation.
A consent agreement shall be in the form as is ordinarily submitted to the court.
(1) The Commission shall accept an undertaking—
(a) that addresses the issues of concern raised by the Commission in the most practicable manner in a relevant market in Zambia;
(b) that is self regulatory and does not rely on continuous monitoring by the Commission; and
(c) where any cost of monitoring shall be met by the person giving the undertaking.
(2) Subject to sub-regulation (1), an undertaking shall be in the form of—
(a) a simple official letter that lists the undertaking;
(b) a memorandum in the form of—
(i) a title page;
(ii) preambular statements;
(iii) undertakings provided;
(iv) a monitoring and evaluation mechanism;
(v) a statement of commitment from the person or enterprise to provide regular feedback to the Commission; or
(c) any other international best practice.
15. Investigation at request of foreign competition authority
Where the Commission receives a request to investigate a person or an enterprise that is or is suspected to be carrying on a conduct that is the subject of investigation by a foreign competition authority, the manner of investigation shall be in accordance with the provisions of the Act, these Regulations and any guidelines issued by the Commission.
PART VII
CONSUMER PROTECTION
A consumer who alleges that a person or an enterprise is engaged in any practice prohibited under Part VII of the Act, may lodge a complaint with the Commission—
(a) verbally;
(b) in writing; or
(c) through any other means of communication as may reasonably be understood by the Commission.
PART VIII
GENERAL PROVISIONS
17. Service of documents on Commission
(1) A document may be given to, lodged with, or served on the Commission by delivering it, or causing it to be delivered, whether by post or otherwise, at any registered office of the Commission.
(2) A document referred to in sub-regulation (1), may include—
(a) an application to the Commission made under the Act or these Regulations;
(b) a notice given to or lodged with the Commission under the Act or these Regulations; or
(c) any other document to be given to, lodged with or served on the Commission.
(3) A person who lodges a document with the Commission which includes an address for service may, at any time, lodge with the Commission a notice, in writing, stating a new address for service.
(4) A reference in these Regulations to an address for service shall, in relation to a person who has notified two or more addresses for service, be read as a reference to the latter or latest of those addresses.
18. Service of documents on person other than Commission
Subject to these Regulations, a document or notice that is required or permitted by, or under, the Act or these Regulations to be served on, or given to, a person in connection with any proceeding or matter before the Commission may be served on, or given to, that person—
(a) where the person has included an address for service in a document or notice lodged with the Commission, by delivering the document to the person personally or by sending the document by registered post addressed to that person, at that address;
(b) where the person is a body corporate, by delivering the document personally to the manager, director or secretary of the body corporate or by leaving it at its registered office, or by sending it by registered post addressed to the body corporate at the registered office; or
(c) where the person is not a body corporate, by delivering the document to the person or sending the document by registered post addressed to the person at the last known address of that person.
19. Service of notice by Commission
A notice by the Commission shall be sent to a person by pre-paid post—
(a) where the person has included an address for service in a document or notice lodged with the Commission, at that address;
(b) where the person is a body corporate which does not have a registered office in Zambia but has a place of business in Zambia, at that place of business; or
(c) where the person is not a body corporate, at the last known address of that person.
The Board shall provide an inspector with a certificate of appointment in Form VI set out in the First Schedule.
The tees prescribed in the Second Schedule shall be payable in respect of the matters stated therein.
FIRST SCHEDULE
[Regulations 6, 7, 8(2), 9, 10, 11 and 20]
PRESCRIBED FORMS
Form I
[Regulations 6, 7, 8(2), and 9(1)]
(To be completed in triplicate)
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THE COMPETITION AND CONSUMER PROTECTION COMMISSION |
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The Competition and Consumer Protection Act, 2010 |
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The Competition and Consumer Protection (General) Regulations, 2011 |
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APPLICATION FOR AUTHORISATION OF HORIZONTAL AGREEMENT ( ) VERTICAL AGREEMENT ( ) MERGER ( ) EXEMPTION ( ) NEGATIVE CLEARANCE( ) (tick as appropriate) |
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Shaded fields for official use only |
Application Number |
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Date/Time |
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Information Required |
Information Provided |
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Name of applicant (if more than one, attach list) |
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2. |
Type of applicant |
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Registration No. |
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TPIN No. |
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3. |
Business address: |
Physical |
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Postal |
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Tel: |
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Fax: |
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4. |
Parties to conduct (if more than two, attach list) |
Company 1 |
Company 2 |
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Name: |
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Name: |
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Address: |
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Address: |
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Tel: |
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Tel: |
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Cell: |
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Cell: |
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Fax: |
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Fax: |
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E-mail: |
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E-mail: |
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5. |
List products/services offered or supplied in Zambia to which the conduct applies or affects |
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6. |
Indicate geographical extent of sales of products/services in Zambia covered by the application |
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7. |
Indicate key features of conduct in terms of benefits for applicant(s)/consumer(s)/other members of the public |
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8. |
Indicate horizontal/vertical/any overlapping provisions governing conduct |
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9. |
Indicate the value chain of the industry (Raw material |
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10 |
For each of the main products/services/products or service groups covered by conduct, indicate any close substitutes or complementary products available on market in Zambia and which ones are supplied by parties to the conduct |
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11 |
Indicate latest estimated market shares (national or regional) for each of the parties in each of the main products or services or product or service groups supplied in Zambia |
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12 |
Indicate latest estimated market shares (national or regional) of competing suppliers or manufacturers in Zambia that are not part of conduct |
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13 |
Indicate estimates of imports into Zambia, if any, in each of the products or services |
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Indicate the basis for calculating market shares held by applicant(s) in Zambia (example turnover, asset, production capacity, etc.) |
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Indicate whether consumers or target beneficiaries are concentrated in a certain geographical location in Zambia, regionally or globally |
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List the five largest consumers of the parties in each affected market in Zambia |
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Slate the name, address, fax, telephone numbers of the contact person for each of the consumers indicated above |
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Describe distribution channels that operate in relevant markets (e.g. presence of small independent distributors, use of agent or distributors, direct sales, etc.) |
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19 |
For mergers and negative clearance only |
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(a) List names and addresses of the current and past (two years) Directors of each party to the application or attach a company’s registry print out showing all directors and shareholders of participating parties |
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(b) List names and addresses of current and past (two years) shareholders of each of the parties to conduct |
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(c) List enterprises or persons controlling parties to conduct, directly or indirectly (e.g. holding entities, if applicable) |
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(d) List all enterprises or persons active on any affected market that are controlled, directly or indirectly (e.g. subsidiaries), by any of the participating entities |
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(e) Provide details on post-merger organisation structure, relationships or reporting systems for affected parties |
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(f) Where a foreign party is involved, indicate any future plans for the Zambian business and their relationships |
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20. |
Provide any further factual analysis or argument to show— |
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(a) how conduct will not prevent, restrict or distort competition |
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(b) why conduct should be authorised or exempted in view of any of the following— |
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(i) extent to which conduct is likely to result in a benefit to the public which would outweigh any detriment attributable to a substantial lessening of competition; |
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(ii) extent to which conduct would, or is likely to, promote technical or economic progress and transfer of skills, or otherwise improve production or distribution of goods or provision of services in Zambia; |
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(iii) saving of a failing firm; |
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(iv) extent to which conduct shall maintain or promote exports from Zambia or employment in Zambia; |
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(v) extent to which conduct may enhance the competitiveness, or advance or protect the interests, of micro and small business enterprises in Zambia; |
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(vi) extent to which conduct may affect ability of national industries to compete in international markets; |
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(vii) socio-economic factors as may be appropriate; and |
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(viii) any other factor that bears upon public interest. |
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Manufacturer |
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Have you been convicted of an offence involving fraud or dishonesty under the Competition and Consumer Protection Act, 2010, or any other law within or outside Zambia? |
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If yes, specify details: ……………………………………………………………………………… |
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Nature of offence: …………………………………………………………………………………… |
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Date of conviction: ………………………………………………………………………………….. |
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Sentence: …………………………………………………………………………………………….. |
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Application fee receipt number |
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Name of applicant (individual or authorised representative): ……………………………….. |
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Signature: ………………………………………………… Date: ……………………………….. |
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FOR OFFICIAL USE ONLY |
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Received by: ………………………………………………………. Date…………………………………. |
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(Name) |
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Approved: ………………………………………………………….. |
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Not approved for the following reasons: |
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…………………………………………………………………………………………………………………….. |
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Signature: ………………………………………………. |
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DECLARATION |
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l/We the undersigned declare that, to the best of my/our knowledge and belief, the information given in application is true, correct and complete, that complete copies of documents required by this Form have been supplied, and that all estimates are identified as such and are best estimates of the underlying facts that all the opinions exposed are sincere. |
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Dated at …………………. this ……… day of ………………… 20……. |
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Names(s): ………………………………………………………………………………………………………….. |
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Signature(s): ……………………………………………………………………………………………………….. |
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I/We attach the following relevant documents— |
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Note: |
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1. The Commission prefers a single application made jointly by all the parties to an agreement, though parties may submit separate notifications if they wish, particularly if they wish to include information which they do not want to be given to the other parties. Either way, it is essential that the application(s) include authorised signatures given on behalf of each of the parties separately. |
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2. Experience has shown that pre-application meetings are extremely valuable to both the applying party(ies) and the Commission in determining the precise amount of information required in a notification and, in the large majority of cases, will result in a significant reduction of the information required. Accordingly, applying parties are encouraged to consult the Commission regarding the possibility of dispensing with the obligation to provide certain information. |
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3. If the information required by this Form is not available to you in part or whole, the Commission will accept that the application is complete and thus valid notwithstanding the failure to provide such information, provided that you give reasons for the unavailability of the said information, and provide your best estimates for the missing data together with the sources for the estimate. Where possible, indications as to where any of the requested information that is available to you could be, should be provided. |
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4. The Commission only requests the submission of information relevant and necessary to its inquiry into the notified agreement. |
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5. Incorrect or misleading information in the application will be considered to be incomplete information. The notification will only become effective on the date on which the complete and accurate information is received by the Commission. There are consequences for providing misleading or incorrect information. |
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6. The notification must be completed in English and type-written or printed. The information requested by this Form is to be set out using the sections and paragraph numbers of the Form. The supporting or requested documents may be originals or certified copies of the originals. |
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7. CONFIDENTIALITY: If you believe that your interests would be harmed if any of the information you are asked to supply were to be published or otherwise divulged to other parties submit this information separately with each page clearly marked “Business Secrets” You should also give reasons why this information should not be divulged or published. |
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8. The notification should be delivered during normal Commission working hours at the Commission’s address of service. |
Letter of power of attorney, where applicableForm II
[Regulation 7(2)]
(To be completed in triplicate)
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THE COMPETITION AND CONSUMER PROTECTION COMMISSION |
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The Competition and Consumer Protection Act, 2010 |
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The Competition and Consumer Protection (General) Regulations, 2011 |
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CERTIFICATE NO. ……………………… |
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CERTIFICATE OF EXEMPTION |
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Holder’s name ……………………………………………………………………………………………………….. |
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Address ……………………………………………………………………………………………………………….. |
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The holder of this certificate is hereby exempted from the following conduct: |
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(a) ………………………………………………………………………………………………………………. |
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(b) ………………………………………………………………………………………………………………. |
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(c) ………………………………………………………………………………………………………………. |
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(d) ………………………………………………………………………………………………………………. |
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This certificate is granted for a period of ………………. months/years, commencing on the ………….. day of ………………………………… 20…….. |
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The conditions of grant of the certificate are as shown in the Annexure attached hereto. |
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lssued at ……………………… this ………….. day of ……………………. 20 …… |
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……………………………………. |
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Conditions of Grant of Certificate of Exemption |
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This certificate of exemption is granted on the following conditions— |
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(1) ………………………………………………………………………………………………………………………. |
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(2) ………………………………………………………………………………………………………………………. |
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(3) ………………………………………………………………………………………………………………………. |
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(4) ………………………………………………………………………………………………………………………. |
Form III
[Regulation 9(2)]
(To be completed in triplicate)
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THE COMPETITION AND CONSUMER PROTECTION COMMISSION |
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The Competition and Consumer Protection Act, 2010 |
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The Competition and Consumer Protection (General) Regulations, 2011 |
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CERTIFICATE NO. ……………………… |
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CERTIFICATE OF NEGATIVE CLEARANCE |
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Holder’s name ……………………………………………………………………………………………………….. |
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Address ……………………………………………………………………………………………………………….. |
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The certificate holder is hereby granted negative clearance in respect of the following conduct: |
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(a) ………………………………………………………………………………………………………………. |
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(b) ………………………………………………………………………………………………………………. |
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(c) ………………………………………………………………………………………………………………. |
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(d) ………………………………………………………………………………………………………………. |
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The conditions of grant of the certificate arc as shown in the Annexure attached hereto. |
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lssued at …………………… this ………….. day of ………………….. 20…….. |
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Conditions of Grant of Certificate of Negative Clearance |
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This certificate of exemption is granted on the following conditions— |
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(1) ………………………………………………………………………………………………………………………. |
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(2) ………………………………………………………………………………………………………………………. |
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(3) ………………………………………………………………………………………………………………………. |
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(4) ………………………………………………………………………………………………………………………. |
Form IV
[Regulation 10(1)]
(To be completed in triplicate)
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THE COMPETITION AND CONSUMER PROTECTION COMMISSION |
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The Competition and Consumer Protection Act, 2010 |
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The Competition and Consumer Protection (General) Regulations, 2011 |
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APPLICATION FOR AUTHORISATION OF INVESTIGATION |
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Case File No.: |
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Complainant’s/informer’s details |
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NRC: |
Address: |
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Tel: |
Cell: |
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Occupation: |
Fax: |
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Complaint method: |
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Defendant’s details |
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Tel: |
Address: |
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Economic sector: |
Cell: |
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Fax: |
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PART A |
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Initiating officer to summarise core allegations and the section of the Act reasonably believed to be contravened. Complainant/informer to attach relevant supporting documents. |
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……………………………………………………………………………………………………………………………. |
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Complainant: ……………………………. Signature: ……………………… Date: ………………………. |
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PART B |
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The alleged offence appears to be a contravention of section …………………. of the Act. |
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Complainant: …………………………….. Signature: …………………….. Position: ………………….. |
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PART C |
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In terms of the Competition and Consumer Protection Act, 2010, and facts as summarised in Part A of this authorisation in relation to the identified contravention under section ………… of the Act. |
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Dated this ………….. day of ……………………….. 20……. |
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Form V
[Regulation 11]
(To be completed in triplicate)
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THE COMPETITION AND CONSUMER PROTECTION COMMISSION |
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The Competition and Consumer Protection Act, 2010 |
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The Competition and Consumer Protection (General) Regulations, 2011 |
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NOTICE OF INVESTIGATION |
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To: ………………………………………………………………………………………….. (1) |
(1) Here state the name of person under investigation |
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Address …………………………………………………………………………………… (2) |
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TAKE NOTICE that the Competition and Consumer Protection Commission has officially commenced investigations against you on the following allegations (3): |
(2) Here insert address of person under investigation |
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(a) ……………………………………………………………………………………… |
(3) Here state the allegations, indicating the section of the Act allegedly contravened |
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(b) ……………………………………………………………………………………… |
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(c) ……………………………………………………………………………………… |
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(d) ……………………………………………………………………………………… |
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You are hereby requested to respond to this Notice within fourteen (14) days of receipt thereof. |
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Dated this …………. day of ………………… 20……. |
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Form VI
[Regulation 20]
(To be completed in triplicate)
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THE COMPETITION AND CONSUMER PROTECTION COMMISSION |
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The Competition and Consumer Protection Act, 2010 |
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The Competition and Consumer Protection (General) Regulations, 2011 |
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CERTIFICATE OF APPOINTMENT AS INSPECTOR |
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(1) Here insert full names of inspector |
TAKE NOTICE that (1) ………………………………………………………………………. of (2) …………………………………………………………………. has been appointed as an inspector by the Competition and Consumer Protection Commission for a term of (3) ……………………….. and has authority to perform the following functions as directed by the Commission: |
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(2) Here insert address of inspector |
(a) ……………………………………………………………………………………… |
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(b) ……………………………………………………………………………………… |
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(3) Here insert period of appointment |
(c) ……………………………………………………………………………………… |
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(d) ……………………………………………………………………………………… |
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Dated this ……….. day of ………………… 20……. . |
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SECOND SCHEDULE
[Regulation 2]
PRESCRIBED FEES
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Item |
Fee Units |
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Application’s turnover/assets |
upto 100 million fee units |
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Applicant’s turnover/assets |
over 100 million fee units |
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1. Application for authorisation of horizontal/vertical Agreement |
70,000 |
150,000 |
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2. Application for exemption |
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(a) in the case of enterprises |
70,000 |
150,000 |
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(b) in the case of professional associations |
28,000 |
28,000 |
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3. Application for negative clearance |
70,000 |
150,000 |
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4. Application for authorisation of proposed merger |
0.1% of turnover/assets, whichever is higher, with a cap of maximum fee of 16,666,667 fee units |
COMPETITION AND CONSUMER PROTECTION (TRIBUNAL) RULES
[Section 78]
Arrangement of Rules
Rule
PART I
PRELIMINARY
1. Title
2. Interpretation
PART II
INSTITUTION OF APPEALS AND APPLICATION
3. Institution of appeal
4. Application for mandatory order
5. Application for confirmation of consent agreement and undertaking
6. Entry and acknowledgement of appeal or application
7. Power to require further particulars
8. Notice of hearing
9. Sittings of Tribunal
PART III
PROCEEDINGS OF TRIBUNAL
10. Proceedings of Tribunal
11. Quorum
12. Proceedings to be consolidated
13. Default of appearance
14. Tribunal hearing
15. Evidence
16. Production of document or information
17. Amendment of documents
18. Additional information
19. Interlocutory applications
20. Intervention
21. Response to application for leave to intervene
22. Reply
23. Disposition of application for leave to intervene
PART IV
PARTIES
24. Parties
25. Withdrawal of appeals
26. Consent order
27. Extension of time
28. Correction of errors
29. Tribunal to observe principles of natural justice
30. Administration of oaths
PART V
DECISION OF TRIBUNAL
31. Decision of Tribunal
32. Transmission of decision
PART VI
GENERAL PROVISIONS
33. Costs
34. Change of address
35. Service of notices, documents, etc.
Act 24 of 2010,
SI 37 of 2012.
PART I
PRELIMINARY
These Rules may be cited as the Competition and Consumer Protection (Tribunal) Rules.
In these Rules, unless the context otherwise requires—
“Chairperson” means the person appointed as Chairperson of the Tribunal under section 67 of the Act;
“Commission” means the Competition and Consumer Protection Commission established under section 4 of the Act;
“party” means a party to the proceedings;
“proceedings” means proceedings before the Tribunal;
“Register” means the Register of applications and appeal;
“Secretariat” means the Secretariat referred to in section 77 of the Act; and
“Tribunal” means the Competition and Consumer Protection Tribunal established under section 67 of the Act.
PART II
INSTITUTION OF APPEALS AND APPLICATIONS
(1) An appeal to the Tribunal against an order or direction of the Commission shall be instituted by sending to the Secretariat, seven copies of a written notice of appeal stating—
(a) the name and address of the appellant and the respondent;
(b) a copy of the order or direction of the Commission;
(c) the grounds of appeal;
(d) the relief sought; and
(e) the address for service of notices and other documents upon the appellant.
(2) A notice of appeal shall be lodged with the Secretariat within 30 days from the date on which the order or direction is made.
(3) A notice of appeal shall be in Form I set out in the Schedule.
4. Application for mandatory order
An application for a mandatory order by the Commission to the Tribunal shall be made in Form II set out in the Schedule.
5. Application for confirmation of consent agreement and undertaking
An application by the Commission to submit a consent agreement or undertaking for confirmation by the Tribunal shall be made in Form III set out in the Schedule.
6. Entry and acknowledgement of appeal or application
The Secretariat shall, upon receiving a notice of appeal or any other application under this Part—
(a) enter the particulars of the appeal or application in the Register; and
(b) send a copy of the notice or application to the respondent and inform the appellant, applicant or respondent of the reference number of the appeal or application entered in the Registrar, which shall thereafter constitute the title of the appeal or application.
7. Power to require further particulars
(1) The Secretariat may, subject to any direction by the Chairperson, at any time after receiving the notice of appeal or an application, require the appellant or applicant to furnish a statement, in writing, settling out further and better particulars of the grounds on which the appellant or applicant intends to rely and any relevant facts and contentions.
(2) The appellant or applicant shall send seven copies of the statement referred to in sub-rule (1) to the Secretariat within such time as the Chairperson may direct, not being more than 14 days from the date of the requirement under sub-rule (1).
(3) The Secretariat shall, upon receiving the statement referred to in sub-rule (2), send a copy of the statement to the respondent.
(1) The Secretariat shall, at least 14 days before the hearing of the Tribunal, cause the notice of the date, time and place of hearing of the Tribunal to be served on the appellant, applicant or respondent, in Form IV set out in the Schedule.
(2) A party served with the notice referred to in sub-rule (1) may apply, in writing, to the Secretariat for the alteration of the date of hearing.
PART III
PROCEEDINGS OF TRIBUNAL
The Tribunal shall sit at such place and times as the Chairperson may determine, within 60 days of receiving a notice of appeal or an application referred to in Part II.
(1) The Tribunal shall hold its proceedings in public.
(2) Notwithstanding sub-rule (1), the Tribunal may, or upon application by a party to the proceedings, direct that proceedings be held in camera.
(3) Subject to the other provisions of these Rules and to any direction given by the Chairperson, the Tribunal may regulate its own procedure.
(4) There shall preside at any proceedings of the Tribunal—
(a) the Chairperson; or
(b) in the absence of the Chairperson, the Vice-Chairperson.
Three members of the Tribunal shall constitute a quorum.
12. Proceedings to be consolidated
Where more than one notice of appeal or application is given to the Secretariat by different appellants or applicants in respect of the same matter, the Secretariat may on its own motion or on application, in writing, by a party to the appeal or application, order that the appeals or applications be consolidated.
(1) If the appellant, applicant, respondents or any other party to the proceedings does not appear at the time and place appointed for the hearing, the Tribunal may
(a) dismiss the appeal or application;
(b) adjourn the hearing on such terms as the Tribunal considers appropriate; or
(c) hear and determine the appeal or application in the absence of the party or parties and make such order as to costs as it thinks fit.
(2) Where proceedings are dismissed or determined under this rule in the absence of a party, that party may, on an application, in writing, made by that party within 14 days of the dismissed or determination, apply to the Tribunal to set aside the dismissal or determination and give the reasons for that party’s absence from the hearing.
(3) Where the Tribunal is satisfied that the reasons given by a party under sub-rule (2) are sufficient to set aside the dismissal or determination made under sub-rule (1), the Tribunal may set aside that dismissal or determination.
At the hearing—
(a) the appellant or applicant shall present the evidence on which the appeal or application is based, as the case may be;
(b) the respondent shall adduce evidence to rebut the evidence of the appellant or applicant;
(c) the appellant or applicant may address the Tribunal by way of reply to the respondent’s evidence;
(d) the appellant or applicant and the respondent may call a witness to adduce evidence; and
(e) both parties may, at the conclusion of the hearing, present oral or written submissions to the Tribunal.
(1) The Tribunal may receive, as evidence, any statement, document, information or other matter that may assist it to deal effectively with an appeal, whether or not the evidence would be admissible in a court of law.
(2) The Tribunal may take judicial notice of any fact.
(3) Evidence before the Tribunal may be given orally or, if the parties to the proceedings consent or the Chairperson of the Tribunal so orders, by affidavit.
(4) The Tribunal may, at any stage of the proceedings, make an order requiring the personal attendance of any deponent for examination and cross examination.
16. Production of document or information
(1) A party may, at any time during the hearing, give to the other party notice to produce any document to which the appeal relates which is in possession of that party.
(2) A party to the proceedings shall, on request, produce to the Secretariat, any document or other information which the Tribunal may require and which is in the power of that party to produce, and shall afford to every party to the proceedings an opportunity to inspect those documents or copies of the documents and to make copies of the documents and to make copies of the documents.
(3) A notice to produce any document shall be in Form III set out in the Schedule.
(1) A party to an appeal or application may, in writing, apply to the Tribunal for an order to authorise that party to amend any document filed with the Tribunal.
(2) The Tribunal shall, where it allows a party to amend a document, allow any other party affected by the amendment to file additional documents, consequently to the amendment, within a time period stipulated by the Tribunal.
The Tribunal may, during the hearing, receive such additional information relating to the appeal or application as it may consider necessary to enable it dispose of a matter.
19. Interlocutory applications
(1) Except where these Rules otherwise provide, an application for directions of an interlocutory nature in connection with any proceedings shall, unless otherwise ordered by the Chairperson, be made to the Secretariat.
(2) An interlocutory application shall be in writing and shall state the title of the proceedings and the grounds upon which the application is made.
(3) Where an interlocutory application is made with the consent of all the parties, the consent shall be in writing and signed by, or on behalf of, the parties.
(4) Where an interlocutory application is not made with the consent of every party, a copy shall, before it is made, be served on every other party and the interlocutory application shall state that this has been done.
(5) A party who objects to an interlocutory application may, within 14 days after the service of a copy on the party, send written notice of the objection to the Secretariat and a copy to the applicant.
(6) The Secretariat shall, before making an order on an interlocutory application, consider all the objections received in relations to the interlocutory application and, if any party wishes to be heard, the Secretariat shall give the party and every other party an opportunity to be heard.
(7) The Secretariat may, and shall, if required by the applicant or by a party objecting to an interlocutory application under this rule, refer an interlocutory application to the Chairperson for decision.
(8) A party aggrieved with a decision of the Secretariat on an interlocutory application under this rule, may appeal to the Chairperson by giving notice in Form I set out in the Schedule, to the Secretariat and to every other party, within 14 days after service on the party of the notice of the decision or within such further time as may be allowed by the Secretariat.
(9) An appeal from a decision of the Secretariat shall not act as a stay of proceedings unless so ordered by the Chairperson.
(10) The powers of the Chairperson under this rule may be exercised and discharged in relation to the application by any member of the Tribunal authorised by the Chairperson.
(1) Where a notice of appeal or an application is lodged with the Secretariat, a person who claims to have an interest in the outcome of the appeal or application may apply to the Tribunal, before the final determination of the appeal, or application for leave to intervene in the hearing of the appeal.
(2) The Tribunal may grant leave to an applicant to intervene in the hearing of the appeal or application where the Tribunal is satisfied that the applicant has an interest in the outcome of the appeal or application.
(3) An application for leave to intervene shall be made in Form VI set out in the Schedule.
(4) An application may, when making an application under sub-rule (3) request the Tribunal to dispose of the application without a hearing.
(5) The Secretariat shall, upon receiving an application for leave to intervene, send a copy of the application to an appellant, applicant or respondent, as the case may be.
21. Response to application for leave to intervene
(1) A party served with an application for leave to intervene shall send to the Secretariat a response to the application, in writing, within 14 days of the service of the application.
(2) The Secretariat shall serve the response referred to in sub-rule (1) on all the parties to the appeal or application.
(3) A response to an application for leave to intervene shall—
(a) address the matters raised in the application; and
(b) state whether the party filing the response considers that a hearing should be held to determine the application.
An applicant for leave to intervene shall send a reply to the response referred to in rule 19, in writing, to the Secretariat, within seven days of receiving the response.
23. Disposition of application for leave to intervene
(1) The Tribunal shall, where it is of the opinion that a hearing should be held to determine an application for leave to intervene, dispose of the application within 14 days of receiving the application in such manner as it may determine.
(2) Where the Tribunal grants leave for intervention—
(a) the Secretariat shall send to the intervenor, a list of all documents filed in relation to the appeal or application, within seven days of the leave being granted;
(b) the intervenor may, on request to the Secretariat, obtain copies of the Document on the list referred to in paragraph (a);
(a) each party to the appeal or application and any other it intervenor shall serve on the intervenor any document filed by the parties, after the day on which the Tribunal grants leave to intervene; and
(d) the Secretariat shall serve any document filed by an intervenor on the appellant, respond and any other intervenor.
PART IV
PARTIES
(1) The Tribunal may combine any number of persons, jointly, jointly and severally, separately or in the alternative, as parties in the same proceedings, if the parties’ respective rights to relief depend on the determination of substantially the same question of law or facts.
(2) Where in any proceedings, the Chairperson determines that a person, who may be entitled to claim an interest or who is likely to be affected by the outcome of the proceedings, is not a party to the proceedings, the Chairperson shall issue a notice to direct that person to become a party.
(3) The person served with the notice in sub-rule (2) shall, on proof of proper service, become a party to the proceedings and shall be bound by the outcome of the proceedings, whether or not the party makes an appearance.
(4) The Chairperson may, at any stage of the proceedings and on such terms as the Chairperson considers to be just, order the name of any party to be struck out.
(5) Where a party to any proceeding has been incorrectly or defectively cited, the Tribunal may, on application by the party concerned, correct the error or defect.
(6) Where in any proceedings it becomes necessary to substitute a person for an existing party, that person may apply to the Tribunal for an order to substitute that person for an existing party, and the Tribunal may make an order, or give directions as to the further procedure in the hearing.
(7) A non-joinder, misjoinder or substitution made pursuant to this rule shall not affect any prior steps taken in the proceedings.
(8) An application under this rule shall be made in writing and the Secretariat shall serve any application to all the parties to the appeal.
25. Withdrawal of appeal or application
(1) An appellant or applicant may withdraw the appeal or applicant, as the case may be—
(a) at anytime before the hearing of the appeal or application; or
(b) with the consent of the Tribunal at anytime during the hearing of the appeal or application, but before a final determination by the Tribunal.
(2) An appellant or application who intends to withdraw the appeal or application shall send a notice of withdrawal, in writing, to the Secretariat.
(3) The Secretariat shall send a copy of the notice of withdrawal referred to under sub-rule (2), to the parties to the appeal or application.
(4) The Tribunal may, where the hearing of an appeal or application has commenced, after receiving the notice of withdrawal under sub-rule (2), allow the appellant or application to withdraw the appeal or application.
(1) Where the parties agree upon the terms of an order to be made by the Tribunal, particulars of the terms agreed upon shall be in writing and signed by all the parties, their legal representatives or agents.
(2) The parties shall send the terms agreed upon under sub-rule (1), to the Secretariat, and the Tribunal may make an order in accordance with terms, in the absence of the parties.
(1) The Tribunal may, on application by a party to the proceedings, extend the time fixed for filing any document, giving any notice or taking any other step in the proceedings.
(2) An application to extend the time, referred to in sub-rule (1) shall—
(a) be in writing;
(b) state the grounds for the extension; and
(c) be made before the expiration of the time fixed or allowed for extension of time.
The Tribunal may, on application by a party to the proceedings, correct any error or omission in the record of proceedings, by a notice, in writing, signed by the Chairperson, at any time after a decision is made.
29. Tribunal to observe principles of natural justice
The Tribunal shall observe the principles of natural justice and shall hear all the evidence tendered and representations made by, or on behalf of, the parties or application.
The Chairperson may administer oaths or take affirmations for the purpose of proceedings of the Tribunal.
PART V
DECISION OF TRIBUNAL
(1) A decision of the Tribunal shall be in writing and shall contain the following—
(a) the finding of the Tribunal on each issue of fact or law raised in the proceedings; and
(b) the reason for the Tribunal’s findings.
(2) The decision referred to in sub-rule (1) shall be made by the Tribunal within 60 days after hearing the appeal or application.
(1) The Secretariat shall send the decision of the Tribunal to the parties and to the Commission, within seven days of the date of the decision of the Tribunal.
(2) The Secretariat shall send a copy of the decision of the Tribunal to the Commission for implementation.
PART VI
GENERAL PROVISIONS
(1) The Tribunal may, where it makes an order as to costs, direct that the party against whom the order is made shall pay to any other party a lump sum of costs or expenses or such proportion of the costs or expenses as may be just.
(2) The Tribunal shall assess the sum to be paid.
(3) A party aggrieved with the assessment by the Tribunal may apply to the Tribunal to review the decision, within 14 days of the assessment.
A party which change its address shall, within seven days of the change, by notice in writing, inform the Secretariat and the other parties of the change.
35. Service of notices, documents, etc.
(1) A notice or any other document required by these Rules to be served, may be served by delivering it personally to the person to whom it is addressed or may, where the Chairperson is satisfied that the person cannot be found, or is not in the Republic, be served on or brought to the knowledge of that person in such other manner as the Chairperson may direct.
(2) An application or communication to be made to the Tribunal in respect of any matter before the Tribunal shall be address to the Secretariat.
SCHEDULE
[Rules 3, 6, 14, 18, 34 and 35]
FORM I
[Rules 3 and 17(8)]
REPUBLIC OF ZAMBIA
COMPETITION AND CONSUMER PROTECTION ACT, 2012
The Competition and Consumer Protection (Tribunal) Rules, 2012
NOTICE OF APPEAL
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(1) Here insert the full names of the parties (2) Here insert the full name of the person filing the appeal (3) Here insert the part(s) of the decision the appellant is aggrieved with (4) Signature of the Secretariat (6) Here insert the physical address where all documents will be served |
BETWEEN: (1)………………………………………………………………………………………………………… AND ………………………………………………………………………………………………………………AND ………………………………………………………………………………………………………………TAKE NOTICE THAT (2)………………………………………………………………………………… Being dissatisfied with the decision of the *Commission/Secretariat given on the ……………………. day of …………………………….., 20…………., intends to appeal to the Tribunal/Chairperson against the whole decision or against the part or parts of the decision which decided that (3)……………………………………………………………………………………………TAKE NOTICE that the appellant will rely on the following grounds of appeal: GROUNDS – see overleaf attached TAKE NOTICE that the appellant seeks the following reliefs: RELIEFS – see overleaf attached Dated this …………………….. day of ………………………., 20 .. (4)………………………………………………………….. Secretariat The appellants address of service (6) ……………………………………………………………. …………………………………………………………….. …………………………………………………………….. NOTES –*Delete where inapplicable |
FORM II
[Rule 4]
REPUBLIC OF ZAMBIA
COMPETITION AND CONSUMER PROTECTION ACT, 2012
The Competition and Consumer Protection (Tribunal) Rules, 2012
NOTICE OF APPLICATION FOR A MANDATORY
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(1)Here insert the full names of the parties (2) Here insert the type of mandatory order (3) Here insert the name of the person who is swearing the affidavit (4) Signature of the Legal Counsel (5) Here insert the physical address of the other party |
BETWEEN: The Competition and Consumer Protection Commission AND (1) …………………………………………………………………………………………………………. AND ……………………………………………………………………………………………………………… AND ……………………………………………………………………………………………………………… TAKE NOTICE THAT the Competition and Consumer Protection Commission intends to make an application before the Chairperson on the …………….. day of ………………….. 2012 for a mandatory order that (2) ……………………………………………………………………… on the grounds contained in the affidavit in support sworn by (3) …………………………………………………………………………………………………… Dated this ………….. day of ………………………., 20… (4) ………………………………………………………….. Legal Counsel Competition and Consumer Protection Commission Fourth Floor Post Office Building Cairo Road P.O. Box 34919 LUSAKA To: (5) ……………………………………………………………. …………………………………………………………….. …………………………………………………………….. |
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FORM III
[Rule 5]
REPUBLIC OF ZAMBIA
COMPETITION AND CONSUMER PROTECTION ACT, 2012
The Competition and Consumer Protection (Tribunal) Rules, 2012
APPLICATION FOR CONFIRMATION OF CONSENT AGREEMENT UNDERTAKING
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(1) Here insert the full names of the parties (2) Signature of Legal Counsel (3) Here insert the physical address of the other party |
BETWEEN: The Competition and Consumer Protection Commission AND (1)…………………………………………………………………………………………………………. AND …………………………………………………………………………………………………………… AND ……………………………………………………………………………………………………………… TAKE NOTICE THAT the Competition and Consumer Protection Commission intends to submit the Consent Agreement/Undertaking* attached to this application, for confirmation. Dated this …………………… day of………………………, 20… Per (2)………………………………………………………….. Legal Counsel Competition and Consumer Protection Commission Fourth Floor Post Office Building Cairo Road P.O. Box 34919 LUSAKA To: ………………………………………………. …………………………………………………………………………………………………………. NOTES – *Delete where inapplicable |
FORM IV
[Rule 8(1)]
REPUBLIC OF ZAMBIA
COMPETITION AND CONSUMER PROTECTION ACT, 2012
The Competition and Consumer Protection (Tribunal) Rules, 2012
NOTICE OF HEARING
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(1) Here insert the full names of the parties (2) Here insert the name of town (3) Here insert the date (4) Here insert the month (5) Here insert the physical address of the venue where the hearing will be held (6) Signature of the Secretariat |
BETWEEN: (1)…………………………………………………………………………………………………………. AND ………………………………………………………………………………………………………………AND …………………………………………………………………………………………………………… AND ………………………………………………………………………………………………………………. TAKE NOTICE THAT the above matter will be heard and determined by the Competition and Consumer Protection Tribunal at (2)…………………………………………………………………….. on the (3)……………………. day of (4)……………., 20…………, at ………………………. hours in the ………………………………………… noon. Place of hearing (5)……………………………………………………………………………………….. Dated this ………….. day of …………………., 20……… (6)………………………………………………………….. Secretariat |
FORM V
[Rule 16(3)]
REPUBLIC OF ZAMBIA
COMPETITION AND CONSUMER PROTECTION ACT, 2012
The Competition and Consumer Protection (Tribunal) Rules, 2012
NOTICE TO PRODUCE DOCUMENTS
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(1) Here insert the full names of the parties (6) Signature of the Secretariat |
BETWEEN: (1)……………………………………………………………………………………………… AND ……………………………………………………………………………………………………………… AND ……………………………………………………………………………………………………………… AND ………………………………………………………………………………………………………………. TAKE NOTICE THAT at the hearing of this appeal, the appellant intends to produce the following documents; Description of documents:Date of document 1…………………………………… ………………………………………………….. 2…………………………………… ………………………………………………….. 3…………………………………….………………………………………………….. (for other documents see overleaf) Dated this ……….. day of ………………………., 20….… (2)………………………………………………………….. Secretariat |
FORM VI
[Rule 18(3)]
REPUBLIC OF ZAMBIA
COMPETITION AND CONSUMER PROTECTION ACT, 2012
The Competition and Consumer Protection (Tribunal) Rules, 2012
NOTICE OF HEARING
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(1) Here insert the full names of the parties (2) Here insert the full name of the person filing the application (3) Here insert the name of the party, whose position the applicant intends to support (4) Here describe how the applicant proposes to participant in the hearing of the appeal (5) Here insert the signature of the applicant (6) Here insert the physical address of the application |
BETWEEN:(1)……………………………………………………………………………………………. AND ……………………………………………………………………………………………………………… AND ……………………………………………………………………………………………………………… AND ………………………………………………………………………………………………………………. TAKE NOTICE THAT (2)……………………………………………………………………………. Intends to intervene in the hearing of this appeal. TAKE FURTHER NOTICE THAT- 1.The following matters in the appeal affect the applicant: (a) (b) (c) 2.The following are the competitive consequences likely to arise from the matters stated in paragraph 1: (a) (b) (c) 3.The applicant intends to support the position of (3)…………………………., who is a party to this appeal. 4. The applicant intends to participate in this appeal by (4) (a) (b) (c) 5.The applicant *does/does not request the Tribunal to dispose of the application without a hearing. Applicant The applicant’s address of service (6) ……………………………………………………….. ………………………………………………………. ………………………………………………………. NOTES-*Delete where inapplicable E. L. Sakala, Lusaka Chief Justice 5th June, 2012 |