Competition and Consumer Protection Act, 2010

Act 24 of 2010

Competition and Consumer Protection Act, 2010

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Act 24 of 2010

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Competition and Consumer Protection Act, 2010

Act 24 of 2010

Published in Government Gazette on 16 August 2010
Assented to on 14 August 2010
Commenced
[This is the version of this document from 26 December 2023.]

[Amended by Competition and Consumer Protection (Amendment) Act, 2013 (Act 9 of 2013) on 1 January 2014]
[Amended by Competition and Consumer Protection (Amendment) Act, 2023 (Act 21 of 2023) on 26 December 2023]

[The Act was amended by the deletion of the words “to pay the Commission a fine”, wherever the words appear and the substitution therefor of the words “to pay the Commission a penalty” by section 34 of Act 21 of 2023]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.

Part I – Preliminary

1. Short title and commencement

This Act may be cited as the Competition and Consumer Protection Act, 2010, and shall come into operation on such date as the Minister may, by statutory instrument, appoint.

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;“COMESA” means the Common Market for Eastern and Southern Africa, formerly the Preferential Trade Area, established by the COMESA Treaty which was signed on 5th November, 1993 and was ratified by Zambia on 8th December, 1994;[definition of “COMESA” inserted by section 2(b) of Act 21 of 2023]“COMESA Competition Regulations” means the COMESA Competition Regulations promulgated in 2004 by the COMESA Council of Ministers;[definition of “COMESA Competition Regulations” inserted by section 2(b) of Act 21 of 2023]“Commission” means the Competition and Consumer Protection Commission referred to under section four,“company” has the meaning assigned to it in the Companies Act;[Cap. 388]“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;“core assets” means essential assets and includes important or valuable property without which a company is unable to carry on its normal operations;[definition of “core assets” inserted by section 2(b) of Act 21 of 2023]“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 six,“former Commission” means the Zambia Competition Commission established under the repealed Act;[Cap. 417]“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 subsection (2);“inspector” means a person appointed as inspector under section seven;“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 twenty-four;“micro business enterprise” has the meaning assigned to in the Zambia Development Agency Act, 2006;[Act No. 11 of 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;“resale price maintenance” means a vertical agreement whose object or effect is to directly or indirectly fix a selling price to be used by the dealer when re-selling goods to customers;[definition of “resale price maintenance” substituted by section 2(a) of Act 21 of 2023]“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;[Cap. 417]“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;[Cap. 47]“small business enterprise” has the meaning assigned to it in the Zambia Development Agency Act, 2006;[Act No. 11 of 2006]“statutory monopoly” means an enterprise controlled, 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; and[definition of “statutory monopoly” substituted by section 2(a) of Act 21 of 2023]“subsidiary” has the meaning assigned to it in the Companies Act;[Cap.388]“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;“trade association” includes a business association, professional association and an interest group with a common business purpose;[definition of “trade association” inserted by section 2(b) of Act 21 of 2023]“Tribunal” means the Competition and Consumer Protection Tribunal established under section sixty-seven.“turnover” means the latest audited gross sales of an enterprise;“unconscionable” includes a conduct of price gouging, selling of goods and services of unacceptable low quality and other unfair trading practice that defies good conscience and is harsh and oppressive to the consumer; and[definition of “unconscionable” inserted by section 2(b) of Act 21 of 2023]“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, 2017;[Act No. 4 of 2017][definition of “Zambia Bureau of Standards” substituted by section 2(a) of Act 21 of 2023]“Zambia Compulsory Standards Agency” means the Zambia Compulsory Standards Agency established under the Compulsory Standards Act, 2017.[Act No. 3 of 2017][definition of “Zambia Compulsory Standards Agency” added by section 2(b) of Act 21 of 2023]

(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)The COMESA Competition Regulations set out in the Third Schedule apply to an economic activity impacting the Republic and having an effect within the economies of not less than two Member States of COMESA.[subsection (3) inserted by section 3(a) of Act 21 of 2023]

(4)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 trademarks;

(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.

(iv)the enterprise does not engage in conduct that contravenes Part VII of this Act; and[subparagraph (iv) added by section 3(b) of Act 21 of 2023]

[subsection (4), previously (3), renumbered by section 3(c) of Act 21 of 2023]

(5)Notwithstanding paragraph (a) of subsection (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 subsection (1) of section nine or subsection (1) of section ten or

(b)disproportionately restricts or prevents competition.

[subsection (5), previously (4), renumbered by section 3(c) of Act 21 of 2023]

Part II – The Competition and Consumer Protection Commission

4. Continuation and renaming of Zambia Competition Commission

(1)The Zambia Competition Commission established under the repealed Act shall continue to exist as if 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.

[Cap. 417]

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 of market power and mergers;[paragraph (c) amended by section 4(a) of Act 21 of 2023]

(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)co operate 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)review, in consulation with an appropriate authority, an application for relocation of core assets of an enterprise from the Republic; and[paragraph (l) inserted by section 4(b) of Act 21 of 2023]

(m)do all such acts and things as are necessary, incidental or conducive to the better carrying out of its functions under this Act.[paragraph (m), previously (l) renumbered by section 4(c) of Act 21 of 2023]

5A. Functions of the Board

(1)Subject to the other provisions of this Act, the Board shall perform the functions of the Commission and provide strategic policy direction to the Commission.

(2)Despite the generality of subsection (1), the functions of the Board are to—

(a)oversee the implementation and successful operation of the policies, programmes and strategies of the Commission;

(b)monitor and evaluate the performance of the Commission against the plans and budget;

(c)approve the annual workplan, action plan and activity reports of the Commission; and

(d)approve the budget estimates and financial statements of the Commission.

(3)The Board may, subject to this Act, by direction, in writing and subject to any terms and conditions, delegate to the Executive Director any of its functions under this Act.

[section 5A inserted by section 5 of Act 21 of 2023]

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 subsection (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.

(h)seize and retain for use as evidence, goods offered, exposed or sold in violation of this Act.[paragraph (h) added by section 6 of Act 21 of 2023]

(5)An inspector who removes any document or article from any premises under paragraph (g) of subsection (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-competitve trade practices

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

(1)An enterprise, a group of enterprises or a trade association shall not enter into an agreement or undertake a concerted practice which has, as its objective or effect, the prevention, restriction or distortion of competition to an appreciable extent in the relevant market.

(2)An enterprise, a group of enterprises or a trade association that contravenes subsection (1), is liable to pay the Commission a penalty not exceeding ten percent of that enterprise, group of enterprises or trade association’s annual turnover.

[section 8 substituted by section 7 of Act 21 of 2023]

9. Horizontal agreements prohibited perse

(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

(e)provides for collective refusal to deal in, or supply, goods or services.

(2)A person who contravenes subsection (1) commits an offence and is liable, upon conviction, to a fine not exceeding five hundred thousand penalty units or to imprisonment for a period not exceeding five years, or to both.

(3)An enterprise that contravenes subsection (1) is liable to pay the Commission a penalty not exceeding ten percent of its annual turnover.

10. Vertical agreements prohibited perse

(1)A vertical agreement between enterprises is prohibited per se, and void, to the extent that it involves re-sale price maintenance.

(2)Notwithstanding subsection (1), a supplier or producer may recommend a minimum re-sale price to the re-seller of a good or a service 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 it and the words “recommended price” appear next to the stated price.

(3)An enterprise that contravenes subsection (1) is liable to pay the Commission a penalty not exceeding ten percent of its annual turnover.

11. Severability

If an agreement prohibited under section nine or ten contains any provisions that are not prohibited, the provisions shall continue to have effect to the extent that they can be effected without the prohibited provisions.

12. Other horizontal and vertical agreements

Subject to sections eight, nine and ten, an agreement between enterprises is prohibited if the Commission determines that—

(a)the agreement has the effect of preventing, distorting or restricting competition or substantially lessening competition in a market for any goods or services in Zambia; and

(b)the agreement is not exempted under this Part.

13. Interconnected bodies corporate

Sections eight, nine, ten and twelve do not apply to an agreement to which all the parties involved are interconnected bodies corporate falling under a single economic unit.

14. Share of supply threshold for authorisation of restrictive agreements

(1)Where the parties to—

(a)a horizontal agreement, together supply or acquire fifteen percent or more of goods or services of any description in a relevant market in Zambia; or[paragraph (a) amended by section 8(a) of Act 21 of 2023]

(b)a vertical agreement, individually supply or acquire, at either one of the two levels of the market that are linked by the agreement, thirty percent or more of goods or services of any description in a relevant market in Zambia;[paragraph (b) amended by section 8(b) of Act 21 of 2023]

the parties shall apply to the Commission for authorisation of the agreement in the prescribed manner and form.

(2)The Commission shall, upon receipt of an application under subsection (1), carry out an investigation to determine whether the agreement is prohibited under this Act.

(3)The Commission may, upon the conclusion of an investigation under subsection (2), approve or reject the application.

(4)The Commission shall where it rejects an application under subsection (3), inform the applicant accordingly and give the reasons therefor.

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

A dominant position exists in relation to the supply of goods or services in Zambia, if—

(a)thirty percent or more of those goods or services are supplied or acquired by one enterprise; or

(b)sixty percent or more of those goods or services are supplied or acquired by not more than three enterprises.

16. Prohibition of abuse of dominant position

(1)An enterprise shall refrain from any act or conduct if, through abuse or acquisition of a dominant position of market power, the act or conduct limits access to markets or otherwise unduly restrains competition or has or is likely to have adverse effect on trade or the economy in general.

(2)For purposes of this Part, “abuse of a dominant position” includes—

(a)imposing, directly or indirectly, unfair purchase or selling prices or other unfair trading conditions;

(b)limiting or restricting production, market outlets or market access, investment, technical development or technological progress in a manner that affects competition;

(c)applying dissimilar conditions to equivalent transactions with other trading parties;

(d)making the conclusion of contracts subject to acceptance by other parties of supplementary conditions which by their nature or according to commercial usage have no connection with the subject matter of the contracts;

(e)denying any person access to an essential facility;

(f)charging an excessive price to the detriment of consumers; or

(g)selling goods below their marginal or variable cost.

(3)An enterprise that contravenes this section is liable to pay the Commission a penalty not exceeding ten percent of its annual turnover.

17. Determination of relevant market

The Minister may, on the advice of the Commission, prescribe the procedure for determining the relevant market within which the share of supply or acquisition thresholds are to be met under this Act.[section 17 substituted by section 9 of Act 21 of 2023]

18. Application for exemption

(1)Subject to subsection (2), an enterprise that wishes to be exempted from a prohibition under section twelve may apply to the Commission for exemption in the prescribed manner and form upon payment of the prescribed fee.

(2)Subsection (1) does not apply to an agreement that is prohibited per se under this Act.

19. Determination of application for exemption

(1)The Commission may, after receipt of an application under section eighteen—

(a)grant the exemption; or

(b)refuse to grant the exemption.

(2)The Commission shall grant an exemption to an agreement that contributes to, or is likely to contribute to, or result in—

(a)maintaining or promoting exports from Zambia;

(b)promoting or maintaining the efficient production, distribution or provision of goods and services;

(c)promoting technical or economic progress in the production, distribution or provision of goods and services;

(d)maintaining lower prices, higher quality or greater choice of goods and services for consumers;

(e)promoting the competitiveness of micro and small business enterprises in Zambia; or

(f)obtaining a benefit for the public which outweighs or would outweigh the lessening in competition that would result, or is likely to result, from the agreement.

(3)The Commission may grant an exemption under subsection (2), subject to such conditions and for such period as it considers appropriate.

(4)The Commission shall, where it refuses to grant an exemption under subsection (1), inform the applicant accordingly and give the reasons therefor.

20. Amendment of exemption

The Commission may amend an exemption granted under section nineteen, if—

(a)some other enterprise has succeeded to the interest in the enterprise exempted, by substituting the name of the enterprise with the name of the successor;

(b)the name of the enterprise has changed, by substituting the name so changed; or

(c)there has been a change in market circumstances since the exemption was granted.

21. Revocation of exemption

(1)The Commission may revoke an exemption, if—

(a)the exemption was granted on materially incorrect or misleading information;

(b)there has been a material change of circumstances since the exemption was granted; or

(c)the enterprise exempted fails to comply with any condition upon which the exemption was granted.

(2)The Commission shall, where it proposes to revoke an exemption under subsection (1), give notice, in writing, of the proposed action to the enterprise to which the exemption was granted and request the enterprise to submit to the Commission, within seven days of the receipt of the notice, any representation which the enterprise may wish to make on the proposed action.

(3)Notwithstanding subsection (2), an enterprise that does not comply with a condition of an exemption is liable to pay the Commission a penalty not exceeding ten percent of its annual turnover.

22. Exemption in respect of professional rules

(1)A professional association whose rules contain a restriction that has the effect of lessening competition in a market may apply to the Commission for an exemption of a prohibition under section twelve in the prescribed manner and form upon payment of the prescribed fee.

(2)Upon receipt of an application under subsection (1), the Commission shall—

(a)publish in a daily newspaper of general circulation in Zambia, a notice of the application; and

(b)give interested parties, fourteen days from the date of that notice, to make representations concerning the application.

(3)After considering an application and any representations received in relation to the application, the Commission may—

(a)grant an exemption; or

(b)refuse to grant an exemption.

(4)The Commission shall publish a notice of its decision under subsection (3), in such manner and form as it considers appropriate.

(5)The Commission may exempt all, or part, of the rules of a professional association from the provisions of section twelve if, having regard to internationally applied norms, any restriction contained in those rules that has the effect of preventing or substantially lessening competition in a market is reasonably required to maintain—

(a)professional standards; or

(b)the ordinary function of the professional association.

(6)The Commission shall, where it refuses to grant an exemption under subsection (3), inform the applicant accordingly and give the reasons therefor.

(7)The Commission may, where it considers that any rules of a professional association, either wholly or in part, should no longer be exempt under this section, revoke the exemption in respect of such rules or the relevant part of the rules, at any time after it has—

(a)given the professional association notice of the proposed revocation; and

(b)given interested parties fourteen days, from the date of that notice, to make representations concerning the revocation.

(8)The exemption of a rule of a professional association or the revocation of an exemption therefor, shall take effect from such date as may be specified by the Commission.

23. Publication of grant or revocation of exemption

The Commission shall, as soon as is practicable, publish in a daily newspaper of general circulation in Zambia, a notice of every exemption granted, and of every exemption revoked.

23A. Prohibition of relocation of core assets without authorisation

(1)An enterprise shall not relocate core assets from the Republic to another State without the approval of the Commission.

(2)An enterprise which contravenes subsection (1) is liable to pay the Commission a penalty not exceeding ten percent of that enterprise’s annual turnover.

[section 23A added by section 10 of Act 21 of 2023]

23B. Application for authorisation to relocate core assets

(1)An enterprise which intends to relocate core assets from the Republic to another State shall apply to the Commission for authorisation in the prescribed manner and form on payment of a prescribed fee.

(2)The Commission shall, within thirty days of receipt of an application under subsection (1), aprove or reject the application.

(3)The Commission shall, where it rejects an application under subsection (2), inform the applicant, in writing, stating the reasons for the rejection.

(4)The Commission shall, where it approves an application under subsection (1), notify the applicant of the approval in the prescribed form.

[section 23B added by section 10 of Act 21 of 2023]

Part IV – Mergers

24. Definition of merger

(1)For purposes of this Part, a merger occurs where an enterprise, directly or indirectly, acquires or establishes, direct or indirect, control over the whole or part of the business of another enterprise, or when two or more enterprises mutually agree to adopt arrangements for common ownership or control over the whole or part of their respective businesses.

(2)A merger contemplated in subsection (1) may be achieved in the following circumstances:

(a)where an enterprise purchases shares or leases assets in, or acquires an interest in, any shares or assets belonging to another enterprise;

(b)where an enterprise amalgamates or combines with another enterprise; or

(c)where a joint venture occurs between two or more independent enterprises.

(3)For purposes of subsection (1), a person controls an enterprise if that person—

(a)beneficially owns more than one half of the issued share capital of the enterprise;

(b)is entitled to vote a majority of the votes that may be cast at a general meeting of the enterprise, or has the ability to control the voting of a majority of those votes, either directly or through a controlled entity of that enterprise;

(c)is able to appoint or to veto the appointment of a majority of the directors of the enterprise;

(d)is a holding company and the enterprise is a subsidiary of that company;

(e)in the case of an enterprise which is a trust, has the ability to control the majority of the votes of the trustees, to appoint the majority of the trustees or to appoint or change the majority of the beneficiaries of the trust;

(f)has the ability to materially influence the policy of the enterprise in a manner comparable to a person who, in ordinary commercial practice, can exercise the element of control referred to in paragraphs (a) to (e); or

(g)has the ability to veto strategic decisions of the enterprise such as the appointment of directors, and other strategic decisions which may affect the operations of the enterprise.

(h)buys or leases the core assets of another enterprise;[paragraph (h) added by section 11(a) of Act 21 of 2023]

(i)has a market presence or a market turnover which is attributed to the assets bought or leased from another enterprise; or[paragraph (i) added by section 11(a) of Act 21 of 2023]

(j)controls the assets bought or leased.[paragraph (j) added by section 11(a) of Act 21 of 2023]

(4)The Commission shall, for the purpose of establishing control of assets, issue guidelines for determining market presence or market turnover referred to under subsection (3) (i).[subsection (4) added by section 11(b) of Act 21 of 2023]

25. Reviewable mergers

(1)A merger is subject to the provisions of this Part if it is reviewable by the Commission.

(2)The Commission shall review a merger if—

(a)the merger is subject to prior authorisation in accordance with section twenty-six; or

(b)the Commission elects to review the merger in accordance with section twenty-seven.

26. Threshold for authorisation of proposed merger

(1)Parties to a merger transaction that meets the prescribed threshold under subsection (5) shall apply to the Commission for authorisation of the proposed merger in the prescribed manner and form.

(2)The Commission may, upon receipt of an application under subsection (1), approve or reject the application.

(3)The Commission shall, where it rejects an application under subsection (2), inform the applicant accordingly and give the reasons therefor.

(4)A merger that meets the prescribed threshold under subsection (5) and is implemented without the Commission’s authorisation is void.

(5)The Minister may, by statutory instrument, on the recommendation of the Commission, prescribe the threshold to be applied for the purposes of subsection (1).

27. Other mergers subject to review

(1)Notwithstanding section twenty-six, the Commission may, where it has reasonable grounds to believe that a merger falls below the prescribed threshold, review the merger if—

(a)the merger is likely to create a position of dominance in a localised product or geographical market;

(b)the merger is likely to contribute to the creation of a dominant position through a series of acquisitions which are not individually subject to prior notification;

(c)the merger may substantially prevent or lessen competition;

(d)the merger is concluded outside Zambia and has consequences in Zambia that require further consideration; or

(e)as a result of the merger, there is, or is likely to be, competition and public interest factors which require to be considered.

(2)The Commission may, where it determines that a merger is reviewable by the Commission under subsection (1), request any party to the merger to submit to it any information on the transaction for its verification.

(3)The Commission may, within seven days of receiving and verifying the information under subsection (2), request the parties to the merger to apply to the Commission for authorisation of the merger in accordance with section twenty-six.

28. Negative clearance

(1)Any party to a merger transaction seeking clarification as to whether the proposed merger requires the authorisation of the Commission under section twenty-six or is subject to review by the Commission under section twenty-seven, may apply to the Commission for negative clearance in the prescribed manner and form upon payment of the prescribed fee.

(2)Negative clearance, if given, does not commit the Commission if new information becomes available showing that such clearance is not appropriate.

29. Market assessment

The Commission shall, upon receipt of a proposed merger notification, carry out a market assessment of the proposed merger to determine the likely effects of the proposed merger in the relevant market, on trade and the economy in general.

30. Competition assessment

(1)The Commission shall, in considering a proposed merger, assess whether the merger is likely to prevent or substantially lessen competition in a market in Zambia.

(2)Notwithstanding the generality of subsection (1), the Commission shall in considering a proposed merger, take into account the likely and actual factors that affect competition in a defined market, including

(a)the levels of concentration of players in the relevant market;

(b)the creation or strengthening of barriers to market entry;

(c)the level of imports in the relevant market;

(d)the extent to which there is countervailing buyer or supplier power in the relevant market;

(e)the availability of substitute products in the relevant market;

(f)the likelihood of the merger removing from the market an existing effective and vigorous competitor;

(g)the dynamic characteristics of the market including growth, innovation, pricing and other inherent market characteristics; and

(h)the risk that a position of dominance may be abused.

31. Public interest assessment

The Commission may, in considering a proposed merger, take into account any factor which bears upon the public interest in the proposed merger, including—

(a)the extent to which the proposed merger is likely to result in a benefit to the public which would outweigh any detriment attributable to a substantial lessening of competition;

(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 services in Zambia;

(c)the saving of a failing firm;

(d)the extent to which the proposed merger shall maintain or promote exports from Zambia or employment in Zambia;

(e)the extent to which the proposed merger may enhance the competitiveness, or advance or protect the interests, of micro and small business enterprises in Zambia;

(f)the extent to which the proposed merger may affect the ability of national industries to compete in international markets;

(g)socioeconomic factors as may be appropriate; and

(h)any other factor that bears upon the public interest.

32. Period allowed for assessment

(1)The Commission shall complete its assessment of a proposed merger and issue its determination within a period of ninety days from the date of the application for authorisation of the proposed merger, unless a party to the proposed merger fails to provide the Commission, during the period of assessment, information that is required for the completion of the assessment.

(2)Where the Commission does not issue its determination regarding a proposed merger, within the period specified in subsection (1), the proposed merger shall be deemed to be approved.

(3)The Commission may extend the assessment period referred to in subsection (1), by a period not exceeding thirty days.

(4)The Commission shall, where it extends the assessment period under subsection (3), give notice to the parties at least fourteen days before the expiry of the ninety days.

33. undertakings on proposed merger

The Commission may consider any undertakings offered by a party to a proposed merger, in order to address any concern relating to the proposed merger that has arisen, or may be expected to arise, during the assessment of the proposed merger.

34. Determination of proposed merger

(1)The Commission may, after the completion of an assessment and consideration of any representations on a proposed merger—

(a)approve the proposed merger without any conditions;

(b)approve the proposed merger with conditions or undertakings given by the parties to address competition and other concerns that may have arisen during the assessment of the proposed merger; or

(c)reject the proposed merger.

(2)The Commission shall, where it rejects a proposed merger, inform the parties accordingly and give the reasons therefor.

34A. Compliance with conditions and undertakings of merger

(1)An enterprise shall—

(a)submit to the Commission correct information in relation to an assessment of a proposed merger; and

(b)comply with conditions stated in a determination or with an undertaking given as a condition of an approved merger under section 34.

(2)An enterprise which contravenes subsection (1) is liable to pay the Commission a penalty not exceeding ten percent of the enterprise’s annual turnover.

(3)The Commission may, in addition to the penalty under subsection (2), revoke an approved merger.

[section 34A inserted by section 12 of Act 21 of 2023]

35. Revocation of merger

(1)The Commission may, where an enterprise fails to comply with section 34A, revoke an approved merger in the prescribed manner and form.

(2)The Commission shall, before revoking an approved merger under subsection (1), notify a party to the merger, and any other person who is likely to have an interest in the matter of its intention to revoke the approved merger giving reasons for the Commission’s decision and requesting that party or person to, within thirty days of receipt of the notice, remedy the contravention or show cause why the approved merger should not be revoked.

(3)The Commission shall not revoke an approved merger if the parties to the approved merger or any other person who is likely to have an interest in the matter take remedial measures to the satisfaction of the Commission within the period specified under subsection (2).

(4)The Commission shall, where the party or person fails to correct the contravention, or to show cause why the merger should not be revoked within the period specified under subsection (2), revoke the approved merger.

[section 35 substituted by section 13 of Act 21 of 2023]

36. Compliance with other laws

An approval of a merger by the Commission under this Part shall not relieve an enterprise from complying with any other applicable laws.

37. Offences relating to mergers

(1)An enterprise commits an offence if that enterprise—

(a)implements a merger without the approval of the Commission; or

(b)implements a merger that is rejected by the Commission.

(2)An enterprise that contravenes subsection (1) is liable to a fine not exceeding ten percent of its annual turnover.

[section 37 substituted by section 14 of Act 21 of 2023]

Part V – Market inquiries

38. Initiation of market inquiry

The Commission may initiate a market inquiry where it has reasonable grounds to suspect that a restriction or distortion of competition is occurring—

(a)within a particular sector of the economy; or

(b)within a particular type of agreement occurring across various sectors.

39. Purpose of market inquiry

The purpose of a market inquiry is to determine—

(a)whether any feature, or combination of features, of each relevant sector and each type of agreement has the effect of preventing, restricting or distorting competition in connection with the supply or acquisition of any goods or services in Zambia; and

(b)whether any of the circumstances referred to in subsection (2) of section nineteen, apply to the sector or type of agreement on the same basis as they would have applied to any matter arising under section sixteen.

40. Powers of investigation in connection with market inquiry

For the purposes of a market inquiry under this Part, the Commission may invite interested parties to submit information to it and may exercise, in relation to any enterprise that it considers to be involved in the matters covered by the inquiry, its powers of investigation under this Act.

41. Action to be taken following market inquiry

(1)The Commission shall, at the conclusion of a market inquiry, publish its findings in a daily newspaper of general circulation in Zambia.

(2)The Commission shall, where it finds as a result of an inquiry that the adverse effects for competition specified in paragraph (a) of section thirty-nine exist in relation to a sector or a type of agreement and that paragraph (b) of section thirty-nine does not apply, or applies to a limited extent—

(a)insofar as particular practices identified by the inquiry are capable of being addressed as matters falling within section eight subsection (1) of section nine, subsection (1) of section ten or subsection (1) of section sixteen, deal with them in accordance with the provisions of this Act relating to such matters; or

(b)insofar as the adverse effects for competition cannot be remedied under this Act, or are the result of other applicable laws, make recommendations to the Minister for such further action, including amendments to applicable laws as is required to provide an effective remedy.

Part VI – Sector regulated activities

42. Application of Act to sector regulated activities

Subject to section three, the economic activities of an enterprise in a sector where a regulator exercises statutory powers is subject to the requirements of this Act.[section 42 amended by section 15 of Act 21 of 2023]

43. Memorandum of understanding with sector regulators

The Commission shall, for the purpose of coordinating and harmonising matters relating to competition and consumer protection in other sectors of the economy, enter into a memorandum of understanding with any regulator in that sector, in the prescribed manner and form.[section 43 amended by section 16 of Act 21 of 2023]

44. Market inquiry into regulated sector

The Commission may, where it determines that a regulated sector is unduly restrictive of competition, conduct a market inquiry into the sector, in accordance with Part V.

Part VII – Consumer protection

45. Definition of unfair trading practice

A trading practice is unfair and thereby distorts, or is likely to distort, the purchasing decisions of consumers if the trading practice—

(a)misleads consumers;

(b)compromises the standards of honesty and good faith which an enterprise can reasonably be expected to meet;

(c)is unconscionable; or

(d)places pressure on consumers by use of harassment or coercion.

[section 45 substituted by section 17 of Act 21 of 2023]

46. Prohibition of unfair trading practice

(1)A person or an enterprise shall not practice any unfair trading.

(2)A person who, or an enterprise which, contravenes subsection (1) is liable to pay the Commission—

(a)in the case of a person, a penalty not exceeding one hundred and fifty thousand penalty units; or

(b)in the case of an enterprise, a penalty not exceeding ten percent of the enterprise’s annual turnover; and

[subsection (2) substituted by section 18(a) of Act 21 of 2023]

(3)A person who, or an enterprise which, contravenes subsection (1) shall, in addition to a penalty under subsection (2), refund the consumer the price paid for the goods or services or replace the goods or perform the service to a reasonable standard.[subsection (3) added by section 18(b) of Act 21 of 2023]

47. False or misleading representations

(1)A person or an enterprise shall not make a—

(a)false representation that—

(i)goods are of a particular standard, quality, value, grade, composition, style or model or have a particular history or previous use;

(ii)services are of a particular standard, quality, value or grade;

(iii)any goods are new;

(iv)a particular person has agreed to acquire goods or services; or

(v)goods or services have sponsorship, approval, affiliation, performance characteristics, accessories, uses or benefits that they do not have; or

(b)false or misleading representation concerning the—

(i)price of any goods or services;

(ii)availability of facilities for the repair of any goods or of spare parts for goods;

(iii)place of origin of any goods;

(iv)need for any goods or services; or

(v)existence, exclusion or effect of any condition, warranty, guarantee, right or remedy.

(2)A person who, or an enterprise which, contravenes subsection (1) is liable to pay the Commission—

(a)in the case of a person, a penalty not exceeding one hundred and fifty thousand penalty units; or

(b)in the case of an enterprise, a penalty not exceeding ten percent of that enterprise's annual turnover.

(3)The Commission shall, in addition to penalty under subsection (2), order the person or enterprise to refund the consumer the money paid for the goods or services or replace the goods or perform the services to a reasonable standard.

[section 47 substituted by section 19 of Act 21 of 2023]

48. Display of disclaimer prohibited

(1)An owner or occupier of a shop or other trading premises or platform shall not cause to be displayed any sign or notice that purports to disclaim any liability or deny any right that a consumer has under this Act or any other written law.[subsection (1) amended by section 20(a) of Act 21 of 2023]

(2)A person who, or an enterprise which, contravenes subsection (1) is liable to pay the Commission—

(a)in the case of a person, a penalty not exceeding one hundred and fifty thousand penalty units; or

(b)in the case of an enterprise, a penalty not exceeding ten percent of that enterprise’s annual turnover.

[subsection (2) substituted by section 20(b) of Act 21 of 2023]

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

(1)A person or an enterprise shall not supply a consumer with goods that are defective, not fit for the purpose for which they are normally used or for the purpose that the consumer indicated to the person or the enterprise.

(2)A person who, or an enterprise which, contravenes subsection (1) commits an offence and is liable, on conviction—

(i)in the case of a person, to a penalty not exceeding five hundred thousand penalty units; or

(ii)in the case of an enterprise, to a penalty not exceeding ten percent of that enterprise’s annual turnover.

[subsection (2) substituted by section 21(a) of Act 21 of 2023]

(3)A person who, or an enterprise which, contravenes subsection (1), shall

(a)within seven days or an agreed reasonable time of the supply of the goods concerned, refund the consumer the price paid for the goods; or[paragraph (a) amended by section 21(b) of Act 21 of 2023]

(b)if practicable and if the consumer so chooses, replace the goods with goods which are free from defect and are fit for the purpose for which they are normally used or the purpose that the consumer indicated to the person or the enterprise.

(4)The Commission may, in addition to the penalty stipulated under subsections (2) and (3)—

(a)recall the product from the market; or

(b)order the person or enterprise concerned, to pay a fine not exceeding ten percent of that person’s or enterprise’s annual turnover or three hundred thousand penalty units, whichever is higher, where the recalled product re-appears on the market.

(5)A person or an enterprise shall supply a service to a consumer with reasonable care and skill or within a reasonable time or, if a specific time was agreed, within a reasonable period around the agreed time.

(6)A person who, or an enterprise which, contravenes subsection (5) is liable to pay the Commission a penalty not exceeding ten percent of that person’s or enterprise’s annual turnover.

(7)In addition to the penalty under subsection (6), a person or an enterprise shall, within fourteen days of the provision of the service concerned, refund the consumer the money paid for the service or perform the service to a reasonable standard.[subsection (7) substituted by section 21(c) of Act 21 of 2023]

50. Product labelling

(1)A product that is sold in Zambia shall have a label in the official language to clearly indicate the product description, the ingredients used in the product, the date of manufacture and expiry of the product, the manufacturer’s name, the physical location of the manufacturer, the telephone number and any other contact details of the manufacturer.[subsection (1) amended by section 22(a) of Act 21 of 2023]

(2)A person or an enterprise shall not sell any goods to consumers unless the goods conform to the mandatory consumer product information standard for the class of goods set by the Zambia Compulsory Standards Agency or other relevant competent body.[subsection (2) amended by section 22(b) of Act 21 of 2023]

(3)A person who, or an enterprise which, sells, exposes for sale, imports, displays or deals with a product in any manner contrary to subsection (1) or (2), commits an offence and is liable, upon conviction, to a fine not exceeding three hundred thousand penalty units or to imprisonment for a period not exceeding three years, or to both.

(4)The Commission may, in addition to the penalty stipulated under subsection (3)—

(a)recall the product from the market; or

(b)order the person or enterprise to pay a fine not exceeding ten percent of that person’s or enterprise’s annual turnover or three hundred thousand penalty units, whichever is higher, where the recalled product reappears on the market.

(5)A person who, or an enterprise which, fails to comply with an order under subsection (4), 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.

51. Prohibition for charging more than displayed price

(1)A person or an enterprise shall not charge a consumer more than the price indicated on the product or service.

(2)Where a person or an enterprise displays more than one price for a product or service at the same time, that person or enterprise shall sell the product or charge for the service at the lowest price displayed.

(3)A person who, or an enterprise which, contravenes subsections (1) and (2) is liable to pay the Commission—

(a)in the case of a person, a penalty not exceeding fifty thousand penalty units; and

(b)in the case of an enterprise, a penalty not exceeding ten percent of that enterprise’s annual turnover.

(4)In addition to the penalty under subsection (3)—

(a)a person who, or an enterprise which, charges a consumer more than the price indicated on the product or service shall refund the consumer the difference between the price indicated and the actual price paid; and

(b)a person who, or an enterprise which, displays more than one price for a product or service at the same time and sells the product or charges for the service at the highest price displayed shall refund the consumer the difference between the lowest price and the highest price displayed.

(5)Subject to the Bank of Zambia Act, 2022, the price on a product or service shall be displayed in the legal tender of the Republic.[Act No. 5 of 2022]

[section 51 substituted by section 23 of Act 21 of 2023]

52. Consumer product safety

(1)A person or an enterprise shall not—

(a)sell any goods to consumers unless the goods conform to the standards approved by the Zambia Bureau of Standards or Zambia Compulsory Standard Agency under the Standards Act, 2017, or the Compulsory Standards Act, 2017, respectively, or any other relevant competent body; or[Act No. 4 of 2017; Act No. 3 of 2017]

(b)expose for sale, supply, import, or display a product that is expired, has exceeded its “best before” date, “use by” date, or “sell by” date, or has otherwise exceeded its shelf life.

[subsection (1) substituted by section 24(a) of Act 21 of 2023]

(2)A person who, or an enterprise which, contravenes subsection (1) commits an offence and is liable, upon conviction—

(a)to a fine not exceeding five hundred thousand penalty units or to imprisonment for a period not exceeding five years, or to both; and

(b)to pay the Commission a penalty not exceeding ten percent of that enterprise’s annual turnover.[paragraph (b) substituted by section 24(b) of Act 21 of 2023]

(3)A person or an enterprise shall, in addition to the penalty stipulated under subsection (2), be liable for any loss or damage, including any indirect or consequential loss or damage, arising as a result of—

(a)the lack of conformity or compliance of the goods with the relevant standard; or[paragraph (a) amended by section 24(c) of Act 21 of 2023]

(b)the defect or dangerous characteristic on account of which the goods have been declared unsafe.

(4)The Commission may, where it has reasonable grounds to believe that a person or an enterprise is selling goods which are unsafe, after consulting the Zambia Compulsory Standards Agency, the Zambia Bureau of Standards and such other relevant competent body as it considers appropriate, apply to the Tribunal for an order that—

(a)goods of a certain description are unsafe and that the sale of such goods to any consumer is prohibited; or

(b)goods of a certain description already sold to consumers are unsafe and should be recalled from the market by the supplier, who shall meet any expenses of the recall as well as paying compensation to the consumer from whom the goods are recalled.

[subsection (4) amended by section 24(d) of Act 21 of 2023]

53. Unfair contract term

(1)In a contract between an enterprise and a consumer, the contract or a term of the contract shall be regarded as unfair if it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.

(2)An unfair contract or an unfair term of a contract between a consumer and an enterprise shall not be binding.

(3)Notwithstanding subsection (2), a contract shall bind the parties if it is capable of being enforced without the unfair term.

54. Complaints on unfair contract term or trading practices, defective goods, misrepresentations, e.t.c.

Any person who alleges that a person or an enterprise—

(a)is practising any unfair trading;

(b)has made a false or misleading representation in respect of any goods, services or facilities;

(c)has displayed a disclaimer at any trading premises contrary to the provisions of this Act;

(d)has supplied defective or unsuitable goods or provided unsuitable services to that person;

(e)is selling goods that do not conform with the mandatory safety standards for the class of goods;

(f)has concluded or is enforcing an unfair contract or term of contract to the detriment of that person; or

(g)has contravened any other provision of this Act relating to consumer protection or has failed to comply with a requirement under this Act, to the detriment of that person;

may lodge a complaint with the Commission in the prescribed manner and form.

Part VIII – Investigations and determination by Commission

55. Investigations by Commission

(1)Subject to subsection (4), the Commission may, at its own initiative or on a complaint made by any person, undertake an investigation if it has reasonable grounds to believe that there is, or is likely to be, a contravention of any provision of this Act.

(2)The Commission may, where it undertakes an investigation pursuant to subsection (1), carry out public consultations on the subject of the investigation in such manner as it considers appropriate.

(3)The Commission shall, upon opening an investigation, as soon as practicable, give written notice of the investigation to the person who is the subject of the investigation or to an enterprise which is suspected to be a party to the matter to be investigated and shall indicate in the notice, the subject matter and the purpose of the investigation.

(4)For the purpose of an investigation under this section, the Commission may, by notice in writing served on any person, require that person to—

(a)furnish to the Commission, in a statement signed by that person or, in the case of a body corporate, by a director or member or other competent officer, employee or agent of the body corporate, within the time and in the manner specified in the notice, any information pertaining to any matter specified in the notice which the Commission considers relevant to the investigation;

(b)produce to the Commission, or to a person specified in the notice, any document or article, as specified in the notice, which relates to any matter which the Commission considers relevant to the investigation; or

(c)appear before the Commission, or before a person specified in the notice, at a time and place specified in the notice, to give evidence or to produce any document or article specified in the notice.

(5)A person who, or an enterprise which, contravenes subsection (4), is liable to pay the Commission—

(a)in the case of a person, a penalty not exceeding one hundred thousand penalty units; or

(b)in the case of an enterprise, a penalty not exceeding ten percent of that enterprise’s annual turnover.

[subsection (5) substituted by section 25(a) of Act 21 of 2023]

(6)The Commission may, where it has reasonable grounds to believe that the giving of a written notice under subsections (3) and (4) may materially prejudice its investigation, defer the giving of such notice until after the investigation is concluded.

(7)Notwithstanding subsection (6), the Commission may receive from any person any statement, document, information or article that may assist with its investigation.

(8)The Commission may, upon giving notice under subsections (3) and (4), invite comments from any party with an interest in the matter under investigation.

(9)Nothing in this section compels a person to supply any document or information which the person would be entitled to refuse to produce or give in civil proceedings before any court.

(10)The Commission shall, at the conclusion of an investigation under this section, publish a report of the inquiry and its conclusions in such manner and form as it considers appropriate.

(11)The Commission shall not investigate or review a matter that is before the Tribunal unless the Tribunal directs otherwise.[subsection (11) amended by section 25(b) of Act 21 of 2023]

56. Decision not to investigate

(1)The Commission shall, where it receives a request from any person to investigate a matter and determines that a request is frivolous or vexatious, dismiss the request and inform, in writing, that person of its decision and the reasons therefor.

(2)The Commission may refer a request received from a person or an enterprise to another regulatory authority and shall inform the person or the enterprise of the reasons for its decision.

57. Consent agreement and undertaking

(1)The Commission may, at any time, during or after an investigation under this Part, enter into a consent agreement with an enterprise under investigation or request the enterprise to give an undertaking in the prescribed manner and form.

(2)The Commission shall, on entering into a consent agreement with an enterprise under subsection (1), submit the consent agreement to the Tribunal for confirmation.[subsection (2) substituted by section 26 of Act 21 of 2023]

(3)The Tribunal may, on receipt of the consent agreement under subsection (2)—

(a)give its confirmation; or

(b)return the matter to the Commission with an indication of any areas of concern to be addressed before the Tribunal confirms the agreement.

[subsection (3) substituted by section 26 of Act 21 of 2023]

(4)An undertaking made by an enterprise to the Commission shall—

(a)be communicated to the parties in writing in the form of a decision of the Board; and

(b)have the effect as if it were a directive of the Board.

[subsection (4) substituted by section 26 of Act 21 of 2023]

(5)A person who, or an enterprise which, fails to comply with any conditions stated in a consent agreement or with any undertaking given by the person or the enterprise is liable to pay the Commission a penalty not exceeding ten percent of that person’s or an enterprise’s annual turnover.

58. Directions relating to anti competitive business practices and unfair trading

(1)The Commission may, where anti-competitive conduct or an unfair trading practice falls within the scope of this Act, give an enterprise directions, in writing, that the Commission considers appropriate to ensure that the enterprise ceases to engage in that anti-competitive conduct or unfair trading practice.

(2)A direction under subsection (1) may, in particular, require an enterprise to cease to engage in the anti-competitive conduct or unfair trading practice within a period that may be specified by the Commission.

(3)Subject to subsection (1), the Commission may make an order imposing a financial penalty on the enterprise not exceeding ten percent of that enterprise’s annual turnover during the period of the breach of the prohibition up to a maximum period of five years.

[section 58 substituted by section 27 of Act 21 of 2023]

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

(1)Where the Commission determines, that an enterprise is a party to a restrictive agreement referred to under section eight, nine, ten or twelve or that it is a party to a dominant position within the terms of section sixteen, and that—

(a)in relation to the restrictive agreement, the agreement has the object or effect of preventing, restricting or distorting competition; or

(b)in relation to the dominant position, any conduct of the enterprise—

(i)has the object or effect of preventing, restricting or distorting competition; or

(ii)in any other way, constitutes exploitation of the monopoly situation, the Commission may give the enterprise such directions as it considers necessary, reasonable and practicable to—

(A)remedy, mitigate or prevent the adverse effects on competition that the Commission has identified; or

(B)remedy, mitigate or prevent any detrimental effects on users and consumers so far as they have resulted from, or are likely to result from, the adverse effects on, or the absence of, competition.

[subsection (1) amended by section 28 of Act 21 of 2023]

(2)The Commission shall, in determining, in any particular case, the remedial measures required to be taken, have regard to the extent to which any of the offsetting benefits specified in subsection (2) of section nineteen are present in that case.

(3)Subject to subsections (1) and (2), a direction under this section may include a requirement that the enterprise to which it is given shall—

(a)terminate or amend an agreement;

(b)cease or amend a practice or course of conduct, including conduct in relation to prices;

(c)supply goods or services, or grant access to facilities;

(d)separate or divest itself of any enterprise or assets; or

(e)provide the Commission with specified information on a continuing basis.

(4)A direction given under this section shall be in writing.

60. Appeals

A person who, or an enterprise which, is aggrieved with an order or direction of the Commission under this Part may, within thirty days of receiving the order or direction, appeal to the Tribunal.

61. Remedies in merger control

(1)The Commission may, where it determines after an investigation that an enterprise is a party to a merger and the creation of a merger has resulted, or is likely to result, in a substantial lessening of competition within a market for goods or services, give the enterprise such directions as it considers necessary, reasonable and practicable to—

(a)remedy, mitigate or prevent the substantial lessening of competition; and

(b)remedy, mitigate or prevent any adverse effects that have resulted from, or are likely to result from, the substantial lessening of competition.

(2)The Commission may, in the case of a prospective merger, require an enterprise to—

(a)desist from completion or implementation of the merger insofar as it relates to a market in Zambia;

(b)divest such assets as are specified in a direction within the period so specified in the direction, before the merger can be completed or implemented; or

(c)adopt, or desist from, such conduct, including conduct in relation to prices, as is specified in a direction as a condition of proceeding with the merger.

(3)The Commission may, in the case of a completed merger, require an enterprise to—

(a)divest itself of such assets as are specified in a direction within the period so specified in the direction; or

(b)adopt, or to desist from, such conduct, including conduct in relation to prices, as is specified in the direction as a condition of maintaining or proceeding with the merger.

62. Interim measures

(1)Where—

(a)the Commission has reasonable grounds to suspect that an enterprise is a party to a prohibited agreement and has not completed its examination of the matter, but believes that there is the risk of serious or irreparable injury to a particular person as a consequence of the agreement;

(b)an enterprise is a party to an agreement which is subject to review, to a monopoly situation or to a merger, on which the Commission has opened but not completed an investigation, and the Commission is satisfied that—

(i)there is prima facie evidence that competition is being prevented, restricted, distorted or substantially lessened and that, in consequence, serious or irreparably damage may be caused to a particular person; or

(ii)the enterprise is taking steps that would effectively pre-empt remedial action being taken that would restore the conditions of competition existing prior to the investigation;

the Commission may, in writing, give such directions as it considers appropriate if, as a matter of urgency, it considers it is necessary to do so to—

(A)prevent serious or irreparable injury to a particular person or category of persons;

(B)protect the public interest; or

(C)prevent or pre-empt action being taken by the enterprise under investigation.

(2)The Commission shall give an enterprise to which it intends to give a direction under this section an opportunity to make representations before the direction is given.

63. Review of directions and undertakings

(1)The Commission shall keep under review the compliance with directions given by it and the performance of undertakings given by an enterprise.

(2)The Commission may, where it is satisfied that there has been a material change of circumstance—

(a)agree to vary or terminate a direction; or

(b)accept a variation to an undertaking or release an enterprise from an undertaking.

64. Enforcement of directions and undertakings

(1)Where the Commission determines that an enterprise has failed, without reasonable cause, to comply with a direction or undertaking, it may, subject to subsection (2), apply to the Tribunal for a mandatory order requiring the enterprise to make good the default within a time specified in the order.

(2)The Commission shall consider any representations an enterprise wishes to make before making an application under subsection (1).

(3)The Tribunal may provide in the order that all the costs of, or incidental to, the application shall be borne by the enterprise in default.

(4)A mandatory order of the Tribunal may be served, executed and enforced as if it were an order of the High Court.[subsection (4) added by section 29 of Act 21 of 2023]

65. Enforcement at request of foreign authority

[heading substituted by section 30(a) of Act 21 of 2023]

(1)Subject to subsection (2), a foreign competition or consumer protection authority may, where the foreign competition or consumer protection authority has reasonable grounds to believe that an anti competitive or unfair trading practice in the Republic is damaging competition or consumer welfare in the country of that foreign competition or consumer protection authority, request the Commission to investigate and make an appropriate determination.[subsection (1) substituted by section 30(b) of Act 21 of 2023]

(2)Subsection (1) applies—

(a)to requests from other members of the Common Market for Eastern and Southern Africa or of the Southern African Development Community by virtue of the obligations assumed by Zambia towards these organisations; and

(b)where the Minister has certified by order, in the Gazette, that Zambia has entered into an agreement with one or more States or organisations whereby, on a basis of reciprocity, each party to the agreement shall exercise the principle of comity on the basis described in subsection (1) in investigating and determining cases falling within its jurisdiction.

66. Regulations relating to investigations

The Minister may, by statutory instrument, on the recommendation of the Commission, make regulations to provide for the manner in which investigations under this Part shall be carried out.

Part IX – The Competition and Consumer Protection Tribunal

67. Establishment of Competition and Consumer Protection Tribunal

(1)There is hereby established the Competition and Consumer Protection Tribunal which shall consist of the following part-time members appointed by the Minister:

(a)a legal practitioner of not less than ten years legal experience, who shall be the Chairperson;

(b)a representative of the Attorney-General, who shall be the Vice-Chairperson; and

(c)three other members who shall be experts, with not less than five years experience and knowledge, in matters relevant to this Act.

(2)Subject to subsection (5), a member of the Tribunal shall hold office for a period of four years from the date of appointment and may be re-appointed for a further term of four years.

(3)The Minister may appoint alternate members of the Tribunal referred to in paragraph (c) who shall have, and may perform, the functions of a member during a member’s absence.

(4)A person shall not be appointed as a member of the Tribunal if the person—

(a)is an undischarged bankrupt;

(b)is insane or of unsound mind;

(c)is in lawful custody or the person’s freedom of movement is restricted under any law in force within or outside Zambia; or

(d)has been convicted of an offence under any law.

(5)The office of a member of the Tribunal shall become vacant—

(a)upon the member’s death;

(b)if a member is absent without reasonable excuse from three consecutive sittings of the Tribunal of which the member had notice;

(c)if the member is removed by the Minister;

(d)if the member is adjudged bankrupt;

(e)if the member becomes mentally or physically incapable of performing the duties of a member;

(f)if the member is convicted of an offence under any law and sentenced therefor to imprisonment for a period exceeding six months; or

(g)in the case of a member referred to in paragraphs (a) and (b) of subsection (1), if that member ceases to practise as a legal practitioner on disciplinary grounds confirmed by the Law Association of Zambia.

(6)If a vacancy occurs in accordance with subsection (5), the Minister may appoint a new member in accordance with subsection (1), but the member shall hold office only for the unexpired period of the term.

(7)A member shall, on the expiration of the period for which that member is appointed, continue to hold office until a successor is appointed but in no case shall the further period exceed three months.[subsection (7) added by section 31 of Act 21 of 2023]

68. Functions of Tribunal

The functions of the Tribunal are to—

(a)hear any appeal made to it under this Act; and

(b)perform such other functions as are assigned to it under this Act or any other law.

69. Secretariat of Tribunal

The Ministry responsible for commerce shall provide the necessary secretarial and accounting services to the Tribunal to perform its functions under this Act.

70. Proceedings of Tribunal

(1)Three members of the Tribunal shall form a quorum.

(2)Any question at a sitting or meeting of the Tribunal shall be decided by a majority of the votes of the members of the Tribunal at the sitting or meeting and in the event of an equality of votes, the person presiding at the sitting or meeting shall have a casting vote in addition to that person’s deliberative vote.

(3)A party to a hearing of the Tribunal may be represented by a legal practitioner or, if the party so elects, by any other person or in person.

(4)A decision of the Tribunal shall be in the form of a reasoned judgment, and a copy thereof shall be supplied to each party to the proceedings and to every person affected by the decision.

(5)If a person is present at a meeting of the Tribunal at which any matter is the subject of consideration, and in which matter the person or that person’s spouse is directly or indirectly interested in a private capacity, that person shall, as soon as is practicable after the commencement of the meeting, disclose the interest and shall not, unless the Tribunal otherwise directs, take part in any consideration or discussion of, or vote on, any question relating to that matter.

(6)A disclosure of interest made under this section shall be recorded in the minutes of the meeting at which it is made.

(7)The Tribunal may, for the purpose of any proceedings, use such assessors or experts as the Tribunal may determine.

(8)The Tribunal shall cause to be kept a record of its proceedings.

71. Powers of Tribunal

(1)The Tribunal may—

(a)order the parties or either of them to produce to the Tribunal such information as the Tribunal considers necessary for purposes of the proceedings; or

(b)take any other course which may lead to the just, speedy and inexpensive settlement of any matter before the Tribunal.

(2)The Tribunal may summon witnesses, call for the production of, or inspection of, books, documents and other things, and examine witnesses on oath, and for those purposes, the Chairperson is hereby authorised to administer oaths.

(3)A summons for the attendance of any witness or the production of any book, document or other thing shall be signed by the Chairperson and served in the prescribed manner.

72. False evidence

A person who knowingly gives false evidence regarding any matter which is material to a question in any proceedings before the Tribunal commits an offence and is liable, upon conviction, to a fine not exceeding one hundred thousand penalty units or to imprisonment for a period not exceeding one year, or to both.

73. Determination of Tribunal in respect of mergers

(1)The Tribunal may, if a merger is implemented in contravention of this Act—

(a)order a party to the merger to sell any shares, interest or other assets it has acquired pursuant to the merger; or

(b)declare void any provision of an agreement to which the merger was subject.

(2)The Tribunal may, in addition to or in lieu of making an order under subsection (1), direct any firm, or any other person, to sell any shares, interest or assets of the firm if the prohibited practice—

(a)cannot adequately be remedied in terms of another provision of this Act; or

(b)is substantially conduct by that firm previously found by the Tribunal to have been a prohibited practice.

(3)An order made in terms of subsection (1) or (2) may set a time for compliance and any other terms that the Tribunal considers appropriate, having regard to the commercial interests of the party concerned.

74. Costs

(1)The Tribunal may make an order as to costs as it may consider just having regard to the merits of the matter.

(2)Subject to subsection (1) the costs and charges in connection with proceedings before the Tribunal shall be the costs reasonably incurred by the person in connection with the proceedings or such part of those costs as is determined by the Tribunal.

75. Appeal to Court of Appeal

A person who, or an enterprise which, is aggrieved with a decision of the Tribunal may appeal to the Court of Appeal within thirty days of the determination of the matter.[section 75 substituted by section 32 of Act 21 of 2023]

76. Expenses of Tribunal

The expenses and costs of the Tribunal shall be paid out of funds appropriated by Parliament for the performance of the Tribunal’s functions under this Act.

77. Allowances of members and secretariat

There shall be paid to the members and the secretariat of the Tribunal such allowances as the Minister may determine.

78. Rules

(1)The Chief Justice may, by statutory instrument, make rules relating to—

(a)the manner and form for lodging of appeals under this Part;

(b)the mode of summoning persons before the Tribunal;

(c)the form and manner of service of a summons requiring the attendance of a witness before the Tribunal and the production of any book, record, document or thing;

(d)the procedure to be followed and rules of evidence to be observed in proceedings before the Tribunal; and

(e)the functions of the assessors and experts to the Tribunal.

(2)Rules made under this section may, in particular, provide—

(a)that before any matters are referred to the Tribunal they shall, in such manner as may be provided by the rules, have been brought before and investigated by the Commission in this respect;

(b)for securing notices for the proceedings and specifying the time and manner of the proceedings; and

(c)for securing that any party to the proceedings shall, if that person requires, be entitled to be heard by the Tribunal.

Part X – General provisions

79. Leniency programme

(1)The Commission may operate a leniency programme where an enterprise that voluntarily discloses the existence of an agreement that is prohibited under this Act and co-operates with the Commission in the investigation of the practice, may not be subject to all or part of a fine that could otherwise be imposed under this Act.

(2)The details of a leniency programme under subsection (1), shall be set out in any guidelines of the Commission.

80. Jurisdiction over acts committed outside Zambia

(1)A court of competent jurisdiction shall have jurisdiction over any person for any act committed outside Zambia which, if it had been committed in Zambia, would have been an offence under this Act.

(2)Any proceedings against a person under this section which would be a bar to subsequent proceedings against the person, for the same offence, if the offence had been committed in Zambia, shall be a bar to further proceedings against the person under any written law relating to the extradition of persons, in respect of the same offence outside Zambia.

(3)The Mutual Legal Assistance in Criminal Matters Act shall apply to proceedings under this Act.[Cap. 98]

81. No execution on property of Commission

Notwithstanding anything contrary contained in any written law, where a judgment or order has been obtained against the Commission, no execution or attachment, or process of any nature, shall be issued against the Commission or against the property of the Commission, but the Executive Director shall cause to be paid out of the revenue of the Commission such amounts as may, by the judgment or order, be awarded against the Commission to the person entitled to the amounts.

82. General penalty

A person who contravenes a provision of this Act for which a specific penalty is not provided for under this Act, commits an offence and is liable, upon conviction, to a fine not exceeding one hundred thousand penalty units or to imprisonment for a period not exceeding one year, or to both.

83. Offences by body corporate or unincorporate body

Where an offence under this Act is committed by a body corporate or unincorporate body, every director or manager of the body corporate or unincorporate body shall be liable, upon conviction, as if the director or manager had personally committed the offence, unless the director or manager proves to the satisfaction of the court that the act constituting the offence was done without the knowledge, consent or connivance of the director or manager or that the director or manager took reasonable steps to prevent the commission of the offence.

84. Commission to issue guidelines

(1)In the exercise of its functions under this Act, the Commission may make such guidelines as are necessary for the better carrying out of the provisions of this Act.

(2)The Commission shall publish the guidelines issued under this Act in a daily newspaper of general circulation in Zambia, and the guidelines shall not take effect until they are so published.

(3)The guidelines issued by the Commission under this Act shall bind all persons regulated under this Act.

85. Dissemination of information

The Commission may disseminate in such manner and form as it considers appropriate, information and advice concerning the operation of this Act.

86. Fines

(1)A fine payable under this Act shall be a debt due to the State and shall be summarily recoverable as a civil debt.

(2)Wherever in this Act a fine is required to be paid in relation to the annual turnover of a person or an enterprise, the percentage to be retained by the Commission shall be as may be prescribed in accordance with subsection (3).

(3)The Minister responsible for finance may, by statutory instrument, prescribe the percentage of the turnover paid by a person or an enterprise that is to be retained by the Commission.

87. Regulations

(1)The Minister may, by statutory instrument, on the recommendation of the Commission, make regulations for the better carrying out of the provisions of this Act.

(2)Without prejudice to the generality of subsection (1), regulations under that subsection may make provision for—

(a)the forms, fees payable and the procedure for applications to be made under this Act;

(b)the information and documents to be submitted in support ofapplications to be made under this Act;

(c)the form of an exemption and the conditions therefor;

(d)the form of the negative clearance and the conditions under which it is issued;

(e)the threshold for prior notification to the Commission of a merger transaction;

(f)the manner and form of lodging appeals or reports with the Commission;

(g)the manner and form of serving notices on any person;

(h)the manner and form of service of a notice requiring the attendance of a person before the Commission and the production of any book, record, document or thing;

(i)the manner in which the Commission shall carry out an investigation under this Act;

(j)the manner and form in which the Commission shall institute an inquiry under this Act; and

(k)generally the carrying into effect of the purposes of this Act.

88. Repeal of Act No.18 of 1994

(1)The Competition and Fair Trading Act, 1994, is hereby repealed.

(2)Notwithstanding subsection (1), the provisions of the Second Schedule shall apply in respect of the matters specified therein.

(3)Notwithstanding subsection (1), a person who immediately before the commencement of this Act held office as a member of the Board of the former Commission shall hold office as a member of the Board for a period of three months after which the Minister shall appoint the members of the Board in accordance with the provisions of this Act.

First Schedule(Section 4(3))

Administration of Commission

Part I – The Boad of the Commission

1.Composition of Board of Commission

(1)There is hereby constituted a Board of the Commission which shall consist of the following members appointed by the Minister:

(a)a representative from the Ministry responsible for commerce;

(b)a representative of the Attorney General; and

(c)five other members, with experience and knowledge in matters relevant to this Act, appointed by the Minister.

(2)The Chairperson and the Vice-Chairperson of the Board shall be appointed by the Minister from amongst the members of the Board.

(3)A person shall not be eligible for appointment as a member of the Board if—

(a)that person is under any written law, adjudged or otherwise declared to be of unsound mind;

(b)that person is adjudged or declared bankrupt under any written law in Zambia; or

(c)that person has been convicted of an offence under this Act or any other law.

2.Seal of Commission

(1)The seal of the Commission shall be such device as may be determined by the Commission and shall be kept by the Executive Director.

(2)The Chairperson or the Vice-Chairperson, the Executive Director or any other person authorised by a resolution of the Commission to so act, shall authenticate the affixing of the seal.

(3)Where a contract or instrument is not required to be under seal, the Executive Director or a person authorised by the Commission in that behalf, may execute the contract or instrument on behalf of the Commission without seal.

(4)A document purporting to be a document under the seal of the Commission or issued on behalf of the Commission, shall be received in evidence and shall be executed or issued, as the case may be, without further proof, unless the contrary is proved.

3.Tenure of office and vacancy of member

(1)A member of the Board shall, subject to the other provisions of this Schedule, hold office for a term of four years and may be reappointed for a further term of four years.

(2)Upon the expiration of the term for which a member is appointed, the member shall continue to hold office until another member is appointed, but in no case shall any extension of the period exceed three months.

(3)The office of a member shall be vacated—

(a)upon the member’s death;

(b)if the member is adjudged bankrupt;

(c)if the member is absent from three consecutive meetings of the Commission, of which the member has had notice, without the prior approval of the Commission;

(d)upon the expiry of one month’s notice of the member’s intention to resign, given by the member in writing to the Minister;

(e)if the member becomes mentally or physically incapable of performing duties as a member;

(f)if the member is removed by the Minister; or

(g)if the member is convicted of an offence under this Act or any other law.

(4)Where there is a vacancy in the membership of the Board before the expiry of the term of office, the Minister shall appoint another person to replace the member who vacates office but that person shall only hold office for the remainder of the term.

4.Proceedings of Board

(1)Subject to the other provisions of this Act, the Board may regulate its own procedure.

(2)The Board shall meet for the transaction of its business at least once in every three months at such places and times as the Board may determine.

(3)Upon giving notice of not less than fourteen days, a meeting of the Board may be called by the Chairperson and shall be called if not less than one third of the members so request in writing:Provided that if the urgency of a particular matter does not permit the giving of any notice, a special meeting may be called upon giving a shorter notice.

(4)Four members of the Board shall constitute a quorum.

(5)There shall preside at a meeting of the Board—

(a)the Chairperson;

(b)in the absence of the Chairperson, the Vice Chairperson; or

(c)in the absence of the Chairperson and the Vice Chairperson, such member of the Board as the members present may elect from amongst themselves for the purpose of that meeting.

(6)A decision of the Board on any question shall be by a majority of the members present and voting at the meeting and, in the event of an equality of votes, the person presiding at the meeting shall have, in addition to a deliberative vote, a casting vote.

(7)Where a member is for any reason unable to attend any meeting of the Board, the member may, in writing, nominate another person from the same organisation to attend a meeting in that member’s stead and such person shall be deemed to be a member for the purpose of that meeting.

(8)The Board may invite any person whose presence, in its opinion, is desirable to attend and participate in the deliberations of a meeting of the Board, but that person shall have no vote.

(9)The validity of any proceedings, act or decision of the Board shall not be affected by any vacancy in the membership of the Board or any defect in the appointment of any member or by reason that any person not entitled to do so, took part in the proceedings.

(10)The Board shall cause minutes to be kept of the proceedings of every meeting of the Board.

5.Committees

(1)The Board may, for the purpose of performing its functions under this Act, constitute a committee and delegate to the committee such functions of the Board as it considers necessary.

(2)The Board may appoint as members of a committee constituted under subparagraph (1), persons who are or are not members of the Board and such persons shall hold office for such period as the Board may determine.

(3)Subject to any specific or general direction of the Board, any committee constituted under this paragraph may regulate its own procedure.

6.AllowancesA member of the Board or any committee of the Board thereof shall be paid such allowances as the Board may, with the approval of the Minister, determine.

7.Disclosure of interest

(1)If any person is present at a meeting of the Board or a committee of the Board at which any matter, in which that person or any member of the person’s immediate family is directly or indirectly interested in a private capacity, is the subject of consideration, that person shall, as soon as practicable after the commencement of the meeting, disclose that interest and shall not, unless the Board or the committee otherwise directs, take part in any consideration or discussion of, or vote on any question relating to that matter.

(2)A disclosure of interest made under this paragraph shall be recorded in the minutes of the meeting at which the disclosure is made.

8.Prohibition of publication of, or disclosure of information to unauthorised person

(1)A person shall not, without the consent in writing given by, or on behalf of, the Board, publish or disclose to any unauthorised person, otherwise than in the course of that person’s duties, the contents of any document, communication or information whatsoever, which relates to, or which has come to that person’s knowledge in the course of that person’s duties under this Act.

(2)A person who contravenes subparagraph (1) 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.

(3)A person who, having information which to the knowledge of that person has been published or disclosed in contravention of subparagraph (1), unlawfully publishes or communicates the information to any other person, 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.

9.Immunity of member and staffAn action or other proceedings shall not lie or be instituted against a member of the Board, a committee of the Board or a member of staff of the Commission, for or in respect of any act or thing done or omitted to be done in good faith in the exercise or performance, or purported exercise or performance, of any of the powers, functions or duties conferred under this Act..

Part II – Financial provisions

10.Funds of Commission

(1)The funds of the Commission shall consist of such moneys as may—

(a)be appropriated by Parliament;

(b)be paid to the Commission by way of levies, grants or donations; or[subparagraph (b) amended by section 2(a) of Act 9 of 2013]

(c)vest in or accrue to the Commission.

(2)The Commission may—

(a)accept moneys by way of grants or donations from any source in Zambia and, subject to the approval of the Minister, from any source outside Zambia;

(b)raise by way of loans or otherwise, such moneys as the Commission may require for the discharge of the Commission’s functions; or

(c)in accordance with the regulations made under this Act, charge and collect fees for services provided by the Commission.

(3)The fees charged and collected for services provided by the Commission shall form [W1 of the · general revenues of the Republic.[subparagraph (3) inserted by section 2(b) of Act 9 of 2013]

(4)There shall be paid from the funds of the Commission—

(a)the salaries, allowances and loans of members of staff of the Commission;

(b)reasonable travelling, transport and subsistence allowances for members of the Commission or members of any committee of the Commission when engaged in the business of the Commission, at such rates as the Commission may, with the approval of the Minister, determine; and

(c)any other expenses incurred by the Commission in the performance of the Commission’s functions.

[subparagraph (4), previously (3) renumbered by section 2(c) of Act 9 of 2013]

(5)The Commission may invest, in such manner as the Commission thinks fit, funds that the Commission does not immediately require for the performance of the Commission’s functions.[subparagraph (5), previously (4) renumbered by section 2(c) of Act 9 of 2013]

11.Financial yearThe financial year of the Commission shall be the period of twelve months ending on 31st December in each year.

12.Accounts

(1)The Commission shall cause to be kept proper books of accounts and other records relating to the Commission’s accounts.

(2)The accounts of the Commission shall be audited by the Auditor-General or by auditors appointed by the Auditor-General.

(3)The auditor’s fees shall be paid by the Commission.

13.Annual report

(1)As soon as practicable, but not later than ninety days after the end of the financial year, the Commission shall submit to the Minister a report concerning its activities during the financial year.

(2)The report referred to in subparagraph (1), shall include information on the financial affairs of the Commission and there shall be appended to the report—

(a)an audited balance sheet;

(b)an audited statement of income and expenditure; and

(c)such other information as the Minister may require.

(3)The Minister shall, not later than seven days after the first sitting of the National Assembly next after receipt of the report referred to in subparagraph (1), lay the report before the National Assembly.

Second Schedule (Section 88(2))

Savings and transitional provisions

1.Staff of Commission

(1)For the avoidance of doubt, a person who, before the commencement of this Act, was an officer or employee of the former Commission, shall continue to be an officer or employee of the Commission, as the case may be, as if appointed or employed under this Act.

(2)The service of the persons referred to in subparagraph (1) shall be treated as continuous service.

(3)Nothing in this Act affects the rights and liabilities of any person employed or appointed by the former Commission before the commencement of this Act.

2.Transfer of assets and liabilities

(1)On or after the commencement of this Act, there shall be transferred to, vest in and subsist against the Commission by virtue of this Act and without further assurance, all assets, rights and obligations which immediately before that date were the assets, rights, liabilities and obligations of the former Commission.

(2)Subject to subparagraph (1), every deed, bond and agreement, other than an agreement for personnel service, to which the former Commission was a party immediately before the commencement of this Act whether or not of such a nature that rights, liabilities and obligations could be assigned, shall, unless its subject matter or terms make it impossible that it should have effect as modified, as provided under this paragraph, have effect as if—

(a)the Commission had been party to it;

(b)for any reference to the former Commission there was substituted, with respect to anything falling to be done on or after the commencement of this Act, a reference to the Commission; or

(c)for any reference to any officer of the former Commission, not being a party to it and beneficially interested, there were substituted, as respects anything falling to be done on or after the commencement of this Act, a reference to such officer of the Commission as the Commission shall designate.

(3)Where under this Act, any assets, rights, liabilities and obligations of the former Commission are deemed to be transferred to the Commission in respect of which transfer a written law provides for registration, the Commission shall make an application in writing to the appropriate registration authority for registration of the transfer.

(4)The registration authority, referred to in subparagraph (2), shall make such entries in the appropriate register as shall give effect to the transfer and, where applicable, issue to the transferee concerned a certificate of title in respect of the property or make necessary amendments to the register and shall endorse the deeds relating to the title, right or obligation concerned and no registration fees or other duties shall be payable in respect of the transaction.

3.Legal proceedings

(1)Any legal proceedings or application of the former Commission pending immediately before the commencement of this Act by or against the former Commission may be continued by or against the Commission.

(2)After the commencement of this Act, proceedings in respect of any right, liability or obligation which was vested in, held, enjoyed, incurred or suffered by the former Commission, may be instituted by or against the Commission.

Third Schedule (Section 3)

[Third Schedule added by section 33 of Act 21 of 2023]

Preamble

HAVING REGARD TO Article 55 of the Treaty establishing the Common Market for Eastern and Southern Africa (COMESA) (hereinafter referred to as “the Treaty”);RECOGNISING that anti-competitive practices may constitute an obstacle to the achievement of economic growth, trade liberalisation and economic efficiency in the COMESA Member States;THAT the continued growth in regionalisation of business activities correspondingly increases the likelihood that anti-competitive practices in one country may adversely affect competition in another country;THE NEED for Member States to give effect to the principles of a Regional Competition Regulations and Rules and to use moderation and self-restraint in the interest of co-operation in the field of anti-competitive business practices;THE DESIRABILITY of setting standards for procedures by which the regional competition agency can act as a forum for exchange of views, consultations and conciliation on matters related to anti-competitive practices affecting COMESA regional and international trade;THAT THE GROWTH of foreign direct investment, trade, regional and sub-regional economic integration and co-operation have led to such restrictive business practices as price cartels, market sharing and other practices which adversely impact upon competition and therefore are inimical to consumer welfare;CONSIDERING thereof that Member States should co-operate at regional level in the implementation of their respective national legislation in order to eliminate the harmful effects of anti-competitive practices;CONSIDERING also that closer co-operation between COMESA Member States in the form of notification, exchange of information, co-ordination of actions, consultation among Member States should be encouraged;CONSCIOUS of the relative presence of national competition authorities in Member States and the desirability of establishing national competition authorities in all COMESA Member States;THE MEMBER STATES HAVE AGREED AS FOLLOWS:

Part 1 – Preliminary

Article 1 – Definitions and interpretation

In these Regulations, unless the context provides otherwise:“Anti-competitive” means a conduct which appreciably restrains competition between the Member States and is not otherwise exempt by law or authorised in a manner required by the Regulations;“Arrangement” includes a contract, agreement or understanding whether or not legally enforceable;“Board” means the Board of Commissioners as established by Article 12 of these Regulations;“Commission” means the COMESA Competition Commission established by Article 6 of these Regulations;“Commissioner” means a member of the Board of Commissioners;“Common Market” means the Common Market for Eastern and Southern Africa (COMESA) established by Article 1 of the “Treaty”;“Competition” means the striving or potential striving of two or more persons or organisations engaged in production, distribution, supply, purchase or consumption of goods and services in a given market against one another which results in greater efficiency, high economic growth, increasing employment opportunities, lower prices and improved choice for consumers;“Concerted practice” means an action planned and done in unison by a firm or combination of firms which is anti-competitive;“Consumer” includes any person—(a)who purchases or offers to purchase goods otherwise than for the purpose of resale but does not include a person who purchases any goods for the purpose of using them in the production and manufacture of any other goods or articles for sale; and(b)to whom a service is rendered;“Council” means the Council of Ministers of the Common Market established by Article 7 of the “Treaty”;“Court” means the Court of Justice of the Common Market established by Article 7 of the “Treaty”;“Dominant position” means a dominant position as stipulated in Article 17 of these Regulations;“Goods” when used with respect to particular goods, includes any other goods that are reasonably capable of being substituted for them, taking into account ordinary commercial practice and geographical, technical and temporal constraints;“Market” means a market in the Common Market and, when used 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 first-mentioned goods or services;“Merger” means merger as defined in Article 23 of these Regulations;“Member State” means a Member State of the Common Market;“Person” means a natural or legal person;“Respondent party” means a “person” against whom a complaint of a prohibited practice has been initiated under these Regulations;“Secretary-General” means the Secretary General of the Common Market;“Services” includes the sale of goods, where the goods are sold in conjunction with the rendering of a service;“Trade” includes any business, industry, profession or occupation relating to the supply or acquisition of “goods” or “services”;“Treaty” means the Treaty establishing the Common Market for Eastern and Southern Africa;“Undertaking” includes any “person”, public or private, involved in the production of, or the trade in, goods, or the provision of services.

Article 2 – Purpose of the Regulations

1.The purpose of these Regulations is to promote and encourage competition by preventing restrictive business practices and other restrictions that deter the efficient operation of markets, thereby enhancing the welfare of the consumers in the Common Market, and to protect consumers against offensive conduct by market actors.

Article 3 – Scope of application

1.These Regulations apply to all economic activities whether conducted by private or public persons within, or having an effect within, the Common Market, except for those activities as set forth under Article 4.

2.These Regulations apply to conduct covered by Parts 3, 4 and 5 which have an appreciable effect on trade between Member States and which restrict competition in the Common Market.

3.These Regulations shall have primary jurisdiction over an industry or a sector of an industry which is subject to the jurisdiction of a separate regulatory entity (whether domestic or regional) if the latter regulates conduct covered by Parts 3 and 4 of these Regulations. This Article does not apply to conduct expressly exempted by national legislation.

Article 4 – Exclusions

1.These Regulations shall not apply to:

(a)Arrangements for collective bargaining on behalf of employers and employees for the purpose of fixing terms and conditions of employment;

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

(c)Activities of professional associations designed to develop or enforce professional standards reasonably necessary for the protection of the public interest.

2.These Regulations do not derogate from the direct enjoyment of the privileges and protections conferred by other laws protecting intellectual property, including inventions, industrial models, trademarks and copyrights. They do apply to the use of such property in such a manner as to cause the anti-competitive effects prohibited herein.

Article 5 – Obligations of Member States

1.Pursuant to Article 5(2)(b) of the Treaty, Member States shall take all appropriate measures, whether general or particular, to ensure fulfillment of the obligations arising out of these Regulations or resulting from action taken by the Commission under these Regulations. They shall facilitate the achievement of the objects of the Common Market. Member States shall abstain from taking any measure which could jeopardize the attainment of the objectives of these Regulations.

Part 2 – Institutional arrangements

Article 6 – Establishment of the Commission

1.There is hereby established the COMESA Competition Commission which shall enjoy international legal personality.

2.The Commission shall have in the territory of each Member State:

(a)the legal capacity required for the performance of its functions under the Treaty; and

(b)power to acquire or dispose of movable and immovable property in accordance with the laws and regulations in force in each Member State.

Article 7 – Functions of the Commission

1.The Commission shall apply the provisions of these Regulations with regard to trade between Member States and be responsible for promoting competition within the Common Market.

2.In order to accomplish that which is set out in paragraph 1 above, the Commission shall:

(a)monitor and investigate anti-competitive practices of undertakings within the Common Market, and mediate disputes between Member States concerning anti-competitive conduct;

(b)regularly review regional competition policy so as to advise and make representations to the Council with a view to improving on the effectiveness of the Regulations;

(c)help Member States promote national competition laws and institutions, with the objective of the harmonisation of those national laws with the regional Regulations to achieve uniformity of interpretation and application of competition law and policy within the Common Market;

(d)co-operate with competition authorities in Member States;

(e)co-operate and assist Member States in the implementation of its decisions;

(f)provide support to Member States in promoting and protecting consumer welfare;

(g)facilitate the exchange of relevant information and expertise;

(h)enter into such arrangements as will enhance its ability to monitor and investigate the impact of conduct outside the Common Market but which nevertheless has, or may have, an impact on trade between Member States;

(i)be responsible for developing and disseminating information about competition policy and consumer protection policy; and

(j)co-operate with other agencies that may be established or recognised by COMESA to monitor and regulate any specific sector.

Article 8 – Powers of the Commission

1.The Commission may, in respect of trade between Member States, monitor, investigate, detect, make determinations or take action to prevent, inhibit and/or penalise undertakings.

2.In conducting its investigations, the Commission may, in accordance with the applicable provisions of these Regulations and in keeping with the principles of natural justice:

(a)order any person to appear before it to give evidence;

(b)require the discovery or production of any document or part thereof; and

(c)take any other reasonable action which may be necessary in furtherance of the investigation.

3.Based on the findings of the investigation, the Commission may make a determination that there has been a breach of the Regulations in that the conduct at issue has, or is likely to have, an appreciable negative competitive impact and is inconsistent with the objectives of the Common Market.

4.The Commission shall, to the extent required to remedy or penalise anti-competitive activity:

(a)order the termination or nullification as the case may require of agreements, conduct, activities or decisions prohibited by Part 3 of these Regulations;

(b)direct the enterprise to cease and desist from anti-competitive conduct and to take such steps as it believes may be necessary to overcome the effects of abuse of its dominant position in the market, or any other business conduct inconsistent with the principles as set out in these Regulations;

(c)order payment of compensation to persons affected and;

(d)impose fines for breaches of the provisions of these Regulations. Whose business activities appreciably restrains competition.

5.Any person who contravenes or fails to comply with any provision of these Regulations or any Rules made hereunder, or any directive or order lawfully given, or any requirement lawfully imposed under these Regulations or any Rules made hereunder, for which no penalty is provided shall be determined to have breached the Regulations and shall be liable pursuant to that determination to a fine (in an amount to be determined by Rules) and/or such other penalty as may be assessed.

6.The Commission may enter into such arrangements for the provision of goods and services as may be necessary for the efficient performance of its functions.

7.The Commission, pursuant to the provisions of Article 55 of the Treaty, may establish its own rules of procedure to effectively implement the Regulations.

8.The Commission may appoint, on such terms and conditions as it may determine, such other staff as it considers necessary for the performance of its functions under these Regulations.

Article 9 – Appointment and duties of Director

1.The Council shall appoint a citizen of a Member State to be the Director of the Commission.

2.The Director shall be responsible for administering the Commission’s affairs, funds and property and for performing any other functions that may be conferred or imposed upon him/her by or under these Regulations or that the Commission may delegate or assign to him/her.

3.Commissioners shall not be eligible for appointment as the Director.

4.The Director shall have suitable qualifications and experience in law, economics, commerce, industry or public administration.

5.The terms and conditions of the Director’s appointment shall be as fixed by the Board of Commissioners with the approval of the Council.

6.The Director shall hold office for a term of five years and shall be eligible for re-appointment only for one further term of five years.

Article 10 – Removal of Director

1.The Director shall not be removed from office except by the Council for stated misbehavior or for inability to perform the functions of his office due to infirmity of mind or body or as rendered appropriate by applicable law.

2.The Director, on three months’ written notice addressed to the Council, may resign as Director.

3.The Council may remove the Director from office if that person becomes subject to any of the disqualifications referred to in Article 14 of these Regulations.

Article 11 – Staff of the Commission

1.The Director, with the approval of the Board, may appoint one or more Deputy Director(s), Registrar and such other officers as may be necessary for the due administration of these Regulations.

Article 12 – Board of Commissioners

1.There is hereby established the Board of Commissioners which shall be the supreme policy body of the Commission.

Article 13 – Composition of the Board of Commissioners

1.The Board shall consist of not less than nine (9) and not more than thirteen (13) Commissioners appointed by the Council on the recommendation of the Secretary-General. The nominations of the Secretary-General shall reflect the regional character of the Common Market.

2.The Chairperson and the Vice-Chairperson shall be elected by the Board from among its members.

3.The persons to be recommended under paragraph 1 above shall be chosen for their ability and experience in competition law and policy, industry, commerce, public administration, labour, economics, law, consumer protection and small scale business matters. No person shall be recommended for appointment as a Commissioner unless he/she is a citizen of a Member State.

4.The Chairperson shall assign three of the Commissioners to be full-time members of the Board. The full-time Commissioners shall each have suitable qualifications and experience in law and economics and will form the committee responsible for initial determinations.

5.No member of the Board shall involve himself/herself in any way in the day to day administration of the Commission.

Article 14 – Tenure of Commissioners

1.The Commissioners shall hold office for an initial term of three to five years.

2.No Commissioner may serve for more than two terms.

3.The office of a Commissioner shall become vacant:

(a)upon his/her death;

(b)if the Commissioner is absent without reasonable excuse from three consecutive meetings of the Board of which there has been due notice;

(c)if the Commissioner is lawfully detained or his/her freedom of movement is restricted for a period exceeding six months;

(d)if a Commissioner becomes an un-discharged bankrupt;

(e)if a Commissioner becomes of unsound mind or permanently incapacitated;

(f)if a Commissioner engages in any activity that may undermine the integrity of the Commission and/or the Board or amounting to serious misconduct; or

(g)ceases to be a citizen of any of a Member State.

Article 15 – Functions of the Board

1.The Board may:

(a)issue determination on any conduct prohibited in terms of Part 3 of these Regulations;

(b)adjudicate on any other matter that may, in terms of these Regulations, be considered by it and make an order provided for in these Regulations;

(c)hear appeals from, or review any decision of, the Commission that may, in terms of these Regulations, be referred to it;

(d)hear appeals from initial determinations made by the committee responsible for determination;

(e)make any ruling or order necessary or incidental to the performance of its functions in terms of these Regulations; and

(f)delegate any of its functions to another COMESA agency established to co-ordinate and regulate a specific sector.

2.The Board may recommend to the Council Rules governing:

(a)anything which under these Regulations is required or permitted to be prescribed;

(b)any forms necessary or expedient for purposes of these Regulations;

(c)any fees payable in respect of any service provided by the Commission; or

(d)such other matters as are necessary or expedient for the better carrying out of the purposes of these Regulations.

Part 3 – Anti-Competitive business practices and conduct

Article 16 – Restrictive business practices

1.The following shall be prohibited as incompatible with the Common Market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which:

(a)may affect trade between Member States; and

(b)have as their object or effect the prevention, restriction or distortion of competition within the Common Market.

2.Paragraph 1 applies only if the agreement, decision or concerted practice is, or is intended to be, implemented within the Common Market.

3.Any agreement or decision which is prohibited by paragraph 1 is void.

4.The provisions of paragraph 1 may, however, be declared inapplicable in the case of:

(a)any agreement or category thereof between undertakings;

(b)any decision by associations of undertakings;

(c)any concerted practice or category thereof -

- which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not:

(a)impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives;

(b)afford such undertakings the possibility of eliminating competition in respect of a substantial market for the goods or services in question.

Article 17 – Determination of a Dominant Position

1.For the purposes of these Regulations:

(a)an undertaking holds a dominant position in a market if by itself or together with an interconnected company, it occupies such a position of economic strength as will enable it to operate in the market without effective constraints from its competitors or potential competitors;

(b)any two companies shall be treated as interconnected companies if one of them is a subsidiary or associate of the other, or both of them are subsidiaries of the same parent company;

(c)a “dominant position” means an ability to influence unilaterally price or output in the Common Market or any part of it.

Article 18 – Abuse of a Dominant Position

Any abuse by one or more undertakings of a dominant position within the Common Market or in a substantial part of it shall be prohibited as incompatible with the Common Market in so far as it may affect trade between Member States, if it:

(a)restricts, or is likely to restrict, the entry of any undertaking into a market;

(b)prevents or deters, or is likely to prevent or deter, any undertaking from engaging in competition in a market;

(c)eliminates or removes, or is likely to eliminate or remove, any undertaking from a market;

(d)directly or indirectly imposes unfair purchase or selling prices or other restrictive practices;

(e)limits the production of goods or services for a market to the prejudice of consumers;

(f)as a party to an agreement makes the conclusion of such agreement subject to acceptance by another party of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of the agreement; or

(g)engages in any business activity that results in the exploitation of its customers or suppliers, so as to frustrate the benefits expected from the establishment of the Common Market.

In determining whether an undertaking is in a dominant position, consideration shall be given to the:

(a)relevant market defined in terms of the product and the geographic context;

(b)level of actual or potential competition in terms of number of competitors, production capacity and product demand;

(c)barriers to entry of competitors; and

(d)history of competition and rivalry between competitors in the sector of activity.

Article 19 – Prohibited practices

1.It shall be an offence for undertakings engaged in the market in rival or potentially rival activities to engage in the practices appearing in paragraph 3 provided that this paragraph shall not apply where undertakings are dealing with each other in the context of a common entity wherein they are under common control or where they are otherwise not able to act independently of each other.

2.This Article applies to formal, informal, written and unwritten agreements, arrangements and understandings.

3.For the purpose of paragraph 1, the following are prohibited:

(a)agreements fixing prices, which agreements hinder or prevent the sale or supply or purchase of goods or services between persons, or limit or restrict the terms and conditions of sale or supply or purchase between persons, or limit or restrict the terms and conditions of sale or supply or purchase between persons engaged in the sale of purchased goods or services;

(b)collusive tendering and bid-rigging;

(c)market or customer allocation agreements;

(d)allocation by quota as to sales and production;

(e)collective action to enforce arrangements;

(f)concerted refusals to supply goods or services to a potential purchaser, or to purchase goods or services from a potential supplier; or

(g)collective denials of access to an arrangement or association which is crucial to competition.

Article 20 – Request for authorisation

1.The Commission may, upon application by or on behalf of an undertaking, grant an authorisation to the undertaking to enter and/or give effect to contracts, arrangements or understandings even if they are anti-competitive, if the Commission determines that there are public benefits outweighing the anti-competitive detriment of the contract, arrangement or understanding:

(a)while the authorisation remains in force no party to the contract, arrangement or understanding will be in breach of the applicable Articles of these Regulations by entering or giving effect to it;

(b)authorisation may be granted to cover those who subsequently become parties to the contract, arrangement or understanding, as long as that is its expressed effect.

2.Where an application made to the Commission under this Article for an authorisation in relation to a particular contract or proposed contract is expressed as set out hereinabove, the application shall set out:

(a)the names of the parties to each contract; and

(b)the names of the parties to a proposed contract where those names are known to the applicant at the time when the application is made.

3.If an authorisation is granted in respect of a proposed contract the names of the parties to which were not so known to the applicant, the authorisation shall, by force of this paragraph, be deemed to be expressed to be subject to a condition that any party to the contract will, when so required by the Commission, furnish to the Commission the names of all the parties to the contract.

4.The undertaking concerned, or any other person with a substantial financial interest affected by a decision of the Commission in terms of this Article, may appeal that decision to the Board in the manner set forth in the Rules and Regulations.

Article 21 – Determination of anti-competitive conduct: Procedure of Commission on request

1.Any person may request an investigation referred to in Article 8 where he/she has reason to believe that activity by an undertaking located in a Member State has the effect, or is likely to have the effect, of restricting competition in the Common Market.

2.Any consumer organisation which has reason to believe that activities by an undertaking in the Common Market have the effect, or are likely to have the effect, of restricting competition in the Common Market, may request an investigation as referred to in Article 8.

3.Requests under paragraphs 1 and 2 above shall be in writing and shall disclose sufficient information for the Commission to make a preliminary assessment whether it should proceed with the investigation.

4.Upon receipt of a request mentioned in paragraph 3 above, the Commission shall consult with the interested parties and shall determine on the basis of such consultations whether:

(a)the investigation is within the jurisdiction of the Commission, and

(b)the investigation is justified in all the circumstances of the case.

5.The consultations shall be concluded within 30 days of the date of receipt of the request for investigation, unless the Commission has determined that a longer period is necessary and has so notified the parties. In any event, that longer period shall not exceed 45 additional days from the date of notification from the Commission.

6.Where the Commission decides to conduct the investigation, the Commission shall:

(a)notify the interested parties;

(b)complete the investigation within 180 days from the date of receipt of the request for the investigation; and

(c)where the circumstances so warrant, extend the time period for completion of the investigation and notify the interested parties.

7.Where the Commission decides, following an investigation, that there has been a breach of the Regulations, it shall notify the Respondent party and shall afford that party an opportunity to defend its interest.

8.If the respondent party avails itself of the opportunity to be heard and the hearing has been convened, within 30 days from that hearing, the Commission shall notify the interested parties as to its determination both as regards to the breach of the Regulations and the sanctions to be imposed.

9.Within 10 days of the hearing mentioned in paragraph 8 above, the Commission will notify the interested parties of its determination.

10The Commission may decide, based on its determination, that the party in breach should:

(a)cease its conduct immediately, and/or

(b)pay a fine in an amount to be determined by the Commission; and/or

(c)take whatever action the Commission deems necessary to remove and/or diminish the effect of the illegal conduct.

11.Within 15 days of the Commission’s notification, the affected party may appeal the Commission’s determination in the manner set forth in the Regulations.

12.Where a specific course of action is required pursuant to paragraph 10 above, the undertaking concerned shall do as directed within 30 days of the date of notification unless the Commission determines otherwise.

13.If the undertaking concerned cannot comply, it shall so notify the Commission and request an extension.

14.If the undertaking cannot comply within the time period specified and fails to inform the Commission, the Commission may apply to the relevant national court for an appropriate order.

Article 22 – Determination of anti-competitive conduct: Procedure of Commission on its own initiative

1.Where the Commission has reason to believe that business conduct by an undertaking restrains competition in the Common Market, the Commission will so notify the undertaking involved and will launch an investigation.

2.The Commission shall complete its investigation within 180 days of the notification mentioned in paragraph 1 above, unless it determines that a longer period is necessary.

3.At the end of the investigation, the Commission shall notify the undertaking of its findings.

4.Within 20 days of the notification mentioned in paragraph 3 above, the undertaking in question may respond to the Commission to take issue with its findings.

5.If the undertaking fails to respond within the required time frame set out in paragraph 4 above, the Commission may proceed to assess sanctions pursuant to the process as set forth in paragraphs 8 to 13 of Article 21 of these Regulations.

Part 4 – Mergers and acquisitions

Article 23 – Merger control

1.For the purpose of this Article, “merger” means the direct or indirect acquisition or establishment of a controlling interest by one or more persons in the whole or part of the business of a competitor, supplier, customer or other person whether that controlling interest is achieved as a result of:

(a)the purchase or lease of the shares or assets of a competitor, supplier, customer or other person;

(b)the amalgamation or combination with a competitor, supplier, customer or other person; or

(c)any means other than as specified in sub-paragraph (a) or (b).

2.For the purpose of this Article, “controlling interest”, in relation to:

(a)any undertaking, means any interest which enables the holder thereof to exercise, directly or indirectly, any control whatsoever over the activities or assets of the undertaking; and

(b)any asset, means any interest which enables the holder thereof to exercise, directly or indirectly, any control whatsoever over the asset.

3.This Article shall apply where:

(a)both the acquiring firm and target firm or either the acquiring firm or target firm operate in two or more Member States; and

(b)the threshold of combined annual turnover or assets provided for in paragraph 4 is exceeded.

4.The Board shall, subject to approval by Council, prescribe:

(a)a threshold of combined annual turnover or assets in the region, either in general or in relation to specific industries, at or above which this Article will apply with regard to mergers with a regional dimension;

(b)a method for the calculation of annual turnover and assets.

5.For the purposes of this Article:

(a)“notifiable merger” means a merger or proposed merger with a regional dimension with a value at or above the threshold prescribed in terms of paragraph 4;

(b)“non-notifiable merger” means a merger or proposed merger with a value below the threshold prescribed in terms of paragraph 4.

6.The Commission may require parties to a non-notifiable merger to notify the Commission of that merger if it appears to the Commission that the merger is likely to substantially prevent or lessen competition or is likely to be contrary to public interest.

Article 24 – Notification of a proposed merger

1.A party to a notifiable merger shall notify the Commission in writing of the proposed merger as soon as it is practicable but in no event later than 30 days of the parties’ decision to merge.

2.Any notifiable merger carried out in contravention of this part shall have no legal effect and no rights or obligations imposed on the participating parties by any agreement in respect of the merger shall be legally enforceable in the Common Market.

3.Notification in terms of paragraph 1 shall be made in such form and manner as may be prescribed and shall be accompanied by the prescribed fee and such information and particulars as may be prescribed or as the Commission may reasonably require.

4.The Commission in addition to the sanction under paragraph (1) may impose a penalty if the parties to a merger fail to give notice of the merger as required by paragraph 1.

5.A penalty imposed in terms of paragraph 3 may not exceed ten per centum of either or both of the merging parties’ annual turnover in the Common Market as reflected in the accounts of any party concerned for the preceding financial year.

6.When determining an appropriate penalty, the Commission shall consider the following factors:

(a)the nature, duration, gravity and extent of the contravention;

(b)any loss or damage suffered as a result of the contravention;

(c)the behaviour of the parties concerned;

(d)the market circumstances in which the contravention took place;

(e)the level of benefits derived from the contravention;

(f)the degree to which the parties have co-operated with the Commission; and

(g)whether the parties have previously been found in contravention of competition Regulations in the region.

7.Civil proceedings for the recovery of any penalty imposed in terms of paragraph (3) may be brought against the party or parties concerned by the Commission.

8.A Member State having attained knowledge of a merger notification submitted to the Commission may request the Commission to refer the merger for consideration under the Member State’s national competition law if the Member State is satisfied that the merger, if carried out, is likely to disproportionately reduce competition to a material extent in the Member State or any part of the Member State.

9.The Commission shall consider the request referred to in paragraph 7 and shall inform the concerned Member State in writing within 21 days of the receipt of the request that:

(a)the Commission will deal with the case itself in order to maintain or restore effective competition on the market concerned and the region as a whole; or

(b)the whole or part of the case will be referred to the competent authorities of the Member State concerned with a view to the application of that Member State’s national competition law.

Article 25 – Merger proceedings

1.The Commission shall examine a merger as soon as the notification is received and must make a decision on the notification within 120 days after receiving the notification:

(a)Provided that if the notification is incomplete, the examination period begins on the day following receipt of complete information.

2.If, prior to the expiry of the 120-day period provided for in paragraph (1), the Commission has decided that a longer period is necessary, it shall so inform the parties and seek an extension from the Board.

Article 26 – Consideration of a merger

1Whenever called upon to consider a merger, the Commission shall initially determine whether or not the merger is likely to substantially prevent or lessen competition by assessing the factors set out in paragraph 2, and if it appears that the merger is likely to substantially prevent or lessen competition, the Commission shall then determine:

(a)whether the merger is likely to result in any technological efficiency or other pro-competitive gain which will be greater than and offset the effects of any prevention or lessening of competition that may result or is likely to result from the merger and would not likely be obtained if the merger is prevented;

(b)whether the merger can be justified on substantial public interest grounds by assessing the factors set out in paragraph 4.

2.When determining whether the merger would have the effect, or be likely to have the effect, of substantially lessening competition in the market, the following matters must be taken into account:

(a)the actual and potential level of import competition in the market;

(b)the ease of entry into the market, including tariff and regulatory barriers;

(c)the level, trends of concentration and history of collusion in the market; the degree of countervailing power in the market;

(d)the likelihood that the acquisition would result in the merged parties having market power;

(e)the dynamic characteristics of the market including growth, innovation and product differentiation;

(f)the nature and extent of vertical integration in the market;

(g)whether the business or part of the business of a party to the merger or proposed merger has failed or likely to fail; and

(h)whether the merger will result in the removal of efficient competition.

3.A merger shall be contrary to public interest if the Commission is satisfied that the merger:

(a)has lessened substantially or is likely to lessen substantially the degree of competition in the Common Market or any part thereof; or

(b)has resulted, or is likely to result in, or strengthen a position of dominance which is or will be contrary to the public interest.

4.In order for the Commission to determine whether a merger is or will be contrary to the public interest, the Commission shall take into account all matters that it considers relevant in the circumstances and shall have regard to the desirability of:

(a)maintaining and promoting effective competition between persons producing or distributing commodities and services in the region;

(b)promoting the interests of consumers, purchasers, and other users in the region, in regard to the prices, quality and variety of such commodities and services;

(c)promoting through competition, the reduction of costs and the development of new commodities, and facilitating the entry of new competitors into existing markets.

5.For the purposes of determining whether or not to approve any merger, the Commission may, where necessary, undertake any inquiry to ascertain any competition concerns.

6.Before embarking on an inquiry in terms of this Article, the Commission shall take all reasonable steps to notify all the relevant Member States. The notice shall include:

(a)the nature of the proposed inquiry;

(b)calling upon any interested persons who wish to submit written representations to the Commission in regard to the subject matter of the proposed inquiry.

7.If the Commission is satisfied, having regard to the matters referred to in paragraph 4, that an actual or proposed merger will be contrary to the public interest, the Commission may make any one or more of the following orders:

(a)declaring the merger unlawful, except to such extent and in such circumstance as may be provided by or under the order;

(b)prohibiting or restricting the acquisition by any person named in the order of the whole or part of an undertaking or the assets of an undertaking, or the doing by that person of anything which will or may result in such an acquisition if the acquisition is likely, in the Commission’s opinion, to lead to a merger;

(c)requiring any person to take steps to secure the dissolution of any organisation, whether corporate or unincorporated, or the termination of any association where the Commission is satisfied that the person is concerned in or is a party to a merger;

(d)requiring that if any merger takes place, any party thereto who is named in the order shall observe such prohibitions or restrictions in regard to the manner in which he carries on business as are specified in the order;

(e)generally making such provisions as, in the opinion of the Commission, are reasonably necessary to terminate or prevent the merger or alleviate its effects.

8.An order made in respect of a merger may provide for any of the following matters:

(a)the transfer or vesting of property, rights, liabilities or obligations;

(b)the adjustment of contracts, whether by their discharge or the reduction of any liability or obligation or otherwise;

(c)the creation, allotment, surrender or cancellation of any shares, stocks or securities;

(d)the formation or winding up of any undertaking or the amendment of the memorandum or articles of association or any other instrument regulating the business of any undertaking.

9.An order shall be in writing and served on every person named therein:

(a)Provided that, if the order applies to persons generally or if, in the Commission’s opinion, it is impractical to serve it individually on all the persons to whom it applies, the Commission shall take all reasonable steps to appropriately inform the concerned Member States.

10.Before making an order under this Article, the Commission shall ensure that every person affected thereby is informed of the general content of the order it proposes to make and is given an adequate opportunity to make representations in the matter:

(b)Provided that, if the proposed order will apply to persons generally or if, in the Commission’s opinion, it is impractical to notify its terms to all the persons to whom it will apply, the Commission shall cause the general content of the proposed order to be published in the manner as the Commission considers will bring it to the attention of the persons to whom it will apply.

11.The Commission may amend or revoke an order at any time.

12.Any person aggrieved by the decision of the Commission, may appeal to the Board of Commissioners as prescribed by the Regulations.

Part 5 – Consumer protection

Article 27 – False or misleading representation

1.A person shall not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services:

(a)falsely represent that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use;

(b)falsely represent that services are of a particular standard, quality, value or grade;

(c)falsely represent that goods are new;

(d)falsely represent that a particular person has agreed to acquire goods or services;

(e)falsely represent that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have;

(f)represent that the person has a sponsorship, approval or affiliation it does not have;

(g)make a false or misleading representation with respect to the price of goods or services;

(h)make a false or misleading representation concerning the availability of facilities for the repair of goods or of spare parts for goods;

(i)make a false or misleading representation concerning the place of origin of goods;

(j)make a false or misleading representation concerning the need for any goods or services; or

(k)make a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy.

Article 28 – Unconscionable conduct in consumer transactions

1.A person shall not, in trade or commerce, in connection with the supply or possible supply of goods or services to a person, engage in conduct that is, in all the circumstances, unconscionable.

2.Without in any way limiting the matters to which the Commission may have regard for the purpose of determining whether a person has contravened paragraph 1 in connection with the supply or possible supply of goods or services to a person (in this paragraph referred to as the consumer), the Commission may have regard to:

(a)the relative strengths of the bargaining positions of the person and the consumer;

(b)whether, as a result of conduct engaged in by the person, the consumer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the person;

(c)whether the consumer was able to understand any documents relating to the supply or possible supply of the goods or services;

(d)whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the consumer or a person acting on behalf of the consumer by the person acting on behalf of the person in relation to the supply or possible supply of the goods or services; and

(e)the amount for which, and the circumstances under which, the consumer could have acquired identical or equivalent goods or services from another supplier.

3A person shall not be taken for the purposes of this Article to engage in unconscionable conduct in connection with the supply or possible supply of goods or services to a person by reason only that the person institutes legal proceedings in relation to that supply or possible supply or refers a dispute or claim in relation to that supply or possible supply to arbitration.

4.For the purpose of determining whether a person has contravened paragraph 1 in connection with the supply or possible supply of goods or services to a person:

(a)the Commission shall not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and

(b)the Commission may have regard to conduct engaged in, or circumstances existing, before the commencement of these Regulations.

5.A reference in this paragraph to goods or services is a reference to goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption.

6.A reference in this paragraph to the supply or possible supply of goods does not include a reference to the supply or possible supply of goods for the purpose of re-supply or for the purpose of using them up or transforming them in trade or commerce.

Article 29 – Unconscionable conduct in business transactions

1.A person must not, in trade or commerce, in connection with:

(a)the supply or possible supply of goods or services to a person; or

(b)the acquisition or possible acquisition of goods or services from a person;

(c)engage in conduct that is, in all the circumstances, unconscionable.

2.Without in any way limiting the matters to which the Commission may have regard for the purpose of determining whether a person (the supplier) has contravened paragraph 1 in connection with the supply or possible supply of goods or services to a person (the business consumer), the Commission may have regard to:

(a)the relative strengths of the bargaining positions of the supplier and the business consumer;

(b)whether, as a result of conduct engaged in by the supplier, the business consumer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier;

(c)whether the business consumer was able to understand any documents relating to the supply or possible supply of the goods or services;

(d)whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the business consumer or a person acting on behalf of the business consumer by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services;

(e)the amount for which, and the circumstances under which, the business consumer could have acquired identical or equivalent goods or services from a person other than the supplier;

(f)the extent to which the supplier’s conduct towards the business consumer was consistent with the supplier’s conduct in similar transactions between the supplier and other like business consumers;

(g)the requirements of any applicable industry code;

(h)the requirements of any other industry code, if the business consumer acted on the reasonable belief that the supplier would comply with that code;

(i)the extent to which the supplier unreasonably failed to disclose to the business consumer:

i.any intended conduct of the supplier that might affect the interests of the business consumer; and

ii.any risks to the business consumer arising from the supplier’s intended conduct (being risks that the supplier should have foreseen would not be apparent to the business consumer);

(j)the extent to which the supplier was willing to negotiate the terms and conditions of any contract for supply of the goods or services with the business consumer; and

(k)the extent to which the supplier and the business consumer acted in good faith.

Article 30 – Warning notice to the public

1.The Commission shall publish a notice in the Member States concerned containing one or both of the following:

(a)a statement that goods of a kind specified in the notice are under investigation to determine whether the goods will or may cause injury to any person;

(b)a warning of possible risks involved in the use of goods of a kind specified in the notice.

2.Where an investigation referred to in paragraph 1 has been completed, the Commission shall, as soon as practicable, by notice in writing published in the Member States involved or concerned, announce the results of the investigation, and shall announce in the notice whether, and if so, what action is proposed to be taken in relation to the goods under these Regulations.

Article 31 – Product safety standards and unsafe goods

1.A person shall not, in trade or commerce, supply goods that are intended to be used, or are of a kind likely to be used, by a consumer if the goods are of a kind:

(a)in respect of which there is a prescribed consumer product safety standard and which do not comply with that standard;

(b)in respect of which there is in force a notice under this Article declaring the goods to be unsafe goods; or

(c)in respect of which there is in force a notice under this Article imposing a permanent ban on the goods.

2A person shall not export goods, the supply in the Common Market of which is prohibited by paragraph 1 unless the Commission has, by notice in writing given to the person, approval for the export of those goods.

3.Where the Commission denies a request for approval as mentioned in paragraph (2) the affected party may appeal to the Board pursuant to the procedures set out in the Regulations.

4.Where:

(a)the supplying of goods by a person constitutes a contravention of this paragraph by reason that the goods do not comply with a prescribed consumer product safety standard;

(b)a person suffers loss or damage by reason of a defect in, or a dangerous characteristic of, the goods or by reason of not having particular information in relation to the goods; and

(c)the person would not have suffered the loss or damage if the goods had complied with that standard;

(d)the person shall be deemed for the purposes of these Regulations to have suffered the loss or damage by the supplying of the goods.

5.Where:

(a)the supplying of goods by a person constitutes a contravention of this Article by reason that there is in force a notice under this Article declaring the goods to be unsafe goods or imposing a permanent ban on the goods; and

(b)a person suffers loss or damage by reason of a defect in, or a dangerous characteristic of, the goods or by reason of not having particular information as to a characteristic of the goods;

(c)the person shall be deemed for the purposes of these Regulations to have suffered the loss or damage by the supplying of the goods.

Article 32 – Product information standards

1.A person shall not, in trade or commerce, supply goods that are intended to be used, or are of a kind likely to be used, by a consumer, being goods of a kind in respect of which a consumer product information standard has been prescribed, unless the person has complied with that standard in relation to those goods.

2.The regulations may, in respect of goods of a particular kind, prescribe a consumer product information standard consisting of such requirements as to:

(a)the disclosure of information relating to the performance, composition, contents, methods of manufacture or processing, design, construction, finish or packaging of the goods; and

(b)the form and manner in which that information is to be disclosed on or with the goods;

(c)are reasonably necessary to give persons using the goods information as to the quantity, quality, nature or value of the goods.

3.Paragraph (1) does not apply to goods that are intended to be used outside the Common Market.

4.If it is applied to goods - a statement that the goods are for export only; or

(a)a statement indicating by the use of words authorised by the Regulations to be used for the purposes of this Article that the goods are intended to be used outside the Common Market;

(b)it shall be presumed for the purposes of this paragraph, unless the contrary is established, that the goods are intended to be so used.

5For the purposes of paragraph (4), a statement shall be deemed to be applied to goods if:

(a)the statement is woven in, impressed on, worked into or annexed or affixed to the goods; or

(b)the statement is applied to a covering, label, reel or thing in or with which the goods are supplied.

6.A reference in paragraph (5) to a covering includes a reference to a stopper, glass, bottle, vessel, box, capsule, case, frame or wrapper and a reference in that paragraph to a label includes a reference to a band or ticket.

7.The person shall be deemed, for the purposes of these Regulations, to have suffered the loss or damage by the supplying of the goods where:

(a)the supplying of goods by a person constitutes a contravention of this paragraph by reason that the person has not complied with a prescribed consumer product information standard in relation to the goods;

(b)a person suffers loss or damage by reason of not having particular information in relation to the goods; and

(c)the person would not have suffered the loss or damage if the person had complied with that standard in relation to the goods.

Article 33 – Compulsory product recall

1.Where:

(a)a person (in this Article referred to as the “supplier”), in trade or commerce, supplies goods that are intended to be used, or are of a kind likely to be used, by a consumer;

(b)one of the following subparagraphs applies:

i.it appears to the Commission that the goods are goods of a kind which will or may cause injury to any person;

ii.the goods are goods of a kind in respect of which there is a prescribed consumer product safety standard and the goods do not comply with that standard;

iii.the goods are goods of a kind in relation to which there is in force a notice under Article 33.

(c)it appears to the Commission that the supplier has not taken satisfactory action to prevent the goods causing injury to any person.

2.The Commission shall by appropriate notice in the Member States, require the supplier to do one or more of the following:

(a)take action within the period specified in the notice to recall the goods;

(b)disclose to the public, or to a class of persons specified in the notice, in the matter and within the period specified in the notice, one or more of the following:

i.the nature of a defect in, or a dangerous characteristic of, the goods identified in the notice;

ii.the circumstances, being circumstances identified in the notice, in which the use of the goods is dangerous; or

iii.procedures for disposing of the goods specified in the notice;

(c)inform the public, or a class of persons specified in the notice, in the matter and within the period specified in the notice, that the supplier undertakes to do whichever of the following the supplier thinks is appropriate:

i.except where the notice identifies a dangerous characteristic of the goods - repair the goods;

ii.replace the goods;

iii.refund to a person to whom the goods were supplied (whether by the supplier or by another person) the price of the goods —

- within the period specified in the notice.

3.Prior to the publication by the Commission of the notice mentioned in paragraph 1 (c) above, the Director shall so notify the affected party and give him/her an opportunity to be heard as to why such notice should not be published. Within 10 days of that hearing, the Director must inform the party of the Commission’s decision. If the party disagrees, he/she may appeal pursuant to the procedure set forth in the Regulations.

Article 34 – Power of Commission to declare product safety or information standards

1.The Commission shall notify the public in the Member States concerned, that, in respect of goods of a kind specified in the notice, a particular standard, or a particular part of a standard, prepared or approved by a prescribed association or body, or such a standard or part of a standard with additions or variations specified in the notice, is a consumer product safety standard for the purposes of the Articles 31 and 32 of these Regulations.

2.Where a notice has been given, the standard, or the part of the standard, referred to in the notice, or the standard or part of a standard so referred to with additions or variations specified in the notice, as the case may be, shall be deemed to be a prescribed consumer product safety standard for the purposes of Articles 31 and 32, as the case may be.

Article 35 – Liability in respect of unsuitable goods

1.Where:

(a)a person, in trade or commerce, supplies goods manufactured by the person to another person who acquires the goods for re-supply;

(b)a person (whether or not the person who acquired the goods from the Person) supplies the goods (otherwise than by way of sale by auction) to a consumer;

(c)the goods are acquired by the consumer for a particular purpose that was, expressly or by implication, made known to the Person, either directly, or through the person from whom the consumer acquired the goods or a person by whom any prior negotiations in connection with the acquisition of the goods were conducted;

(d)the goods are not reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied; and

(e)the consumer or a person who acquires the goods from, or derives title to the goods through or under, the consumer suffers loss or damage by reason that the goods are not reasonably fit for that purpose -

-the Person is liable to compensate the consumer or that other person for the loss or damage and the consumer or that person may recover the amount of the compensation by action against the corporation in a court of competent jurisdiction.

2.Paragraph 1 does not apply:

(a)if the goods are not reasonably fit for the purpose referred to in paragraph (1) by reason of:

(i)an act or default of any person (not being the corporation or a servant or agent of the Person); or

(ii)a cause independent of human control;

occurring after the goods have left the control of the Person; or

(b)where the circumstances show that the consumer did not rely, or that it was unreasonable for the consumer to rely, on the skill or judgement of the Person.

Article 36 – Liability for defective goods causing injury or loss

1.If a Person, in trade or commerce, supplies goods manufactured by it; and the goods have a defect; and because of the defect, an individual suffers injuries or loss, then:

(a)the Person is liable to compensate the individual for the amount of the individual’s loss suffered as a result of the injuries; and

(b)the individual may recover that amount by action against the Person; and

2.If the individual dies because of the injuries referred to in paragraph 1 above, a law of COMESA or of a Member State about liability in respect of the death of individuals applies as if:

(a)the action were an action under the law of COMESA or of a Member State for damages in respect of the injuries; and

(b)the defect were the person’s wrongful act, neglect or default.

Article 37 – Unidentified manufacturer

1.If a person who wishes to institute a liability action does not know who manufactured the action goods, the person may serve on a supplier, or each supplier, of the action goods who is known to the person a written request to give the person particulars identifying:

(a)the person which manufactured the goods; or

(b)the supplier of the goods to the supplier requested.

2.If, 30 days after the person has made the request or requests, the person still does not know who manufactured the action goods, then the person, or each person, that is a supplier:

(a)to whom a request was made; and

(b)who did not comply with the request -

- is taken, for the purposes of the action, to have manufactured the action goods.

Article 38 – Defences

1.In a liability action, it is a defence if it is established that:

(a)the defect in the action goods that is alleged to have caused the loss did not exist at the supply time; or

(b)they had that defect only because there was compliance with a mandatory standard for them; or

(c)the state of scientific or technical knowledge at the time when they were supplied by their actual manufacturer was not such as to enable that defect to be discovered; or

(d)if they were comprised in other goods (finished goods) - that defect is attributable only to:

(i)the design of the finished goods; or

(ii)the markings on or accompanying the finished goods; or

(iii)the instructions or warnings given by the manufacturer of the finished goods.

Article 39 – Rules

The Board may make Rules which shall become effective upon approval by the Council.

History of this document

26 December 2023 You are here

26 December 2023 You are here

Amended by Competition and Consumer Protection (Amendment) Act, 2023
01 January 2014

01 January 2014

Amended by Competition and Consumer Protection (Amendment) Act, 2013
Read this version
16 August 2010

16 August 2010

Published in Government Gazette
Read this version
14 August 2010

14 August 2010

Assented to

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Competition and Consumer Protection Act, 2010

Act 24 of 2010

Competition and Consumer Protection Act, 2010

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Competition and Consumer Protection Act, 2010

Act 24 of 2010

Part I – Preliminary

1. Short title and commencement

2. Interpretation

3. Application

Part II – The Competition and Consumer Protection Commission

4. Continuation and renaming of Zambia Competition Commission

5. Functions of Commission

5A. Functions of the Board

6. Executive Director and other staff

7. Inspectors

Part III – Restrictive business and anti-competitve trade practices

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

9. Horizontal agreements prohibited perse

10. Vertical agreements prohibited perse

11. Severability

12. Other horizontal and vertical agreements

13. Interconnected 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 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

23A. Prohibition of relocation of core assets without authorisation

23B. Application for authorisation to relocate core assets

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

34A. Compliance with conditions and undertakings of 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 representations

48. Display of disclaimer prohibited

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

50. Product labelling

51. Prohibition for charging more than displayed price

52. Consumer product safety

53. Unfair contract term

54. Complaints on unfair contract term or trading practices, defective goods, misrepresentations, e.t.c.

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 anti competitive business practices and unfair trading

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

60. Appeals

61. Remedies in merger control