Fair competition commission Investigative Plan - Competition Joshua Msoma Tanzania Fair Competition Commission Sixth Annual African Dialogue Conference Lilongwe, Malawi September, 2014

Fair competition commission 2 Developing Investigative plan Introduction Powers of the Commission to obtain information are stipulated in the Fair Competition Act, No.8 of 2003, under S.71 and Fair Competition Commission Procedure Rules 13 of Written request for information Under Rule 13(1) The Commission may, with or without summons, require a person to provide all necessary information.

Fair competition commission 3 …Developing Investigative plan Rule 13(2) Under this Rule, among other things, the Commission shall: –State the legal basis and the purpose of the request. –Fix the time for the information to be provided. –Specify the penalty for the supply of incorrect/misleading information (simple request). –In case of summons - Specify the prescribed penalty for the supply of incorrect/misleading information and for not complying with summons.

Fair competition commission 4 …Developing Investigative plan Powers to enter and Search Section 71 (5) and Rule avail powers to the Commission to conduct a search, after applying a searching warrant from the Fair Competition Tribunal. Privileged information Fair Competition Commission Procedure Rule 16 (6) stipulate how privileged communications will be handled.

Fair competition commission 5 Elements of Infringements for Investigations Restrictive Trade Practices Investigating competition violation falls under Part II of FCA, specifically in S. 8 – 14:  Anti-competitive agreements.  Abuse/Misuse of market power.  Mergers and acquisitions.

Fair competition commission 6 Initiation of a Complaint Section 69 (1) and (2) FCA The Commission may initiate a complaint against an alleged prohibited practices. Any person may submit information concerning an alleged prohibited practices to the Commission in any manner, or form or in the prescribed form by the Commission.

Fair competition commission 7 Tips - Investigation of Complaints Rule 10 – 12 For complaints lodged at the Commission, they are first assessed in the screening unit to ascertain whether it falls under Commission jurisdiction. Where the screening unit is of the opinion that there is a case to answer the investigation will be commissioned.

Fair competition commission …Tips - Investigation of Complaints Procedure under Rule 17 (1) – (4)  Preparation of investigation plan for the alleged conduct under the guidance of the screening unit. Rule 17(1)-(4)  The Commission conducts its hearing in an “inquisitorial” procedure, which means the hearing is also part of investigation process

Fair competition commission Tips – Investigation Plan Matrix Table 1. Investigation Plan Table 2. Implementation of Investigation Plan

Fair competition commission 10 Table 1 – Investigation Plan Indicator (s)Offence (s)Element of Offence Legal Evidence Economic Evidence Place to Inquire information Low price of product X immediately after new entrant in the market (Predatory pricing!) Abuse of dominance position contrary to S. 10 (1) of FCA, 2003 A conduct must be done by a dominant firm which its- a) object is to prevent, restrict or distort competition) b) effect is to prevent, restrict or distort competition or c) likely effect is to prevent, restrict or distort competition. Proof of dominant position as per S.5 (6) of FCA a) Acting alone – can significantly reduce competition over period of time ( Exception of regulated sectors) b) market share is 35%+ -Sales Volumes data before and after the conduct -Consumers detriment and effect to competition -Market share information – Stock Exchange market- Visit company registrar Revenue Authority etc

Fair competition commission Table 2. Implementation of Investigation Plan Action Taken (Visits/Letters) Documents/informa tion/date obtained What the document/informati on prove Comments/remarks Request information from stock exchange market or; Summons issued to MD of firms or; Search conducted (down raid) -Market shares before and after entry -- individual firms market shares (players) -The firm has 35%+ market share which stood at 70% -Predatory pricing trends (2009 – 2013) The investigation proves there are violation of competition. Preparation of provisional findings to be communicated to the respondent.

Fair competition commission Issuance of Provisional findings and Reply Rule 18, 19 and 20  The Commission will issue a provisional findings to the respondent requiring the respondent to make written representation within specified period.  The Commission will spell out the proposed remedial action that may be implemented through:  Compliance orders/agreements or  Compensatory orders or  Fines.

Fair competition commission Proposed Remedy/Process Agreement/ Settlement. Negotiation for settlement. Objection of provisional findings (Rights to Appeal to FCT)

Fair competition commission Asanteni Thank you 14

Fair competition commission 15 Director General Fair Competition Commission 2nd Floor, Western Wing, Ubungo Plaza, Morogoro Road, P.O.BOX 7883, Dar es Salaam. TEL: , , , ; FAX: ; WEBSITE: