By Suzgo Luhanga
Competition Authorities share a common desire which is for companies to comply with competition law. To achieve this desire, they take a number of approaches to encourage compliance. A common emerging theme amongst a number of Competition Authorities is the use of a number of different tools to support enforcement. This includes using advocacy as a means of encouraging compliance programmes and to establish or reinforce compliant behaviour. This article outlines some of the methods used by the Competition and Consumer Protection Commission (CCPC) to drive compliance with competition rules.
CCPC recognises that the majority of businesses want to comply with competition law. Whilst CCPC will take enforcement action where necessary, it is also its desire to support businesses seeking to achieve a culture of compliance, so that the enterprises do not end up breaching the law.
CCPC considers a combination of strategies that are aimed at both encouraging voluntary compliance and securing compliance by applying all enforcement measures required. This is arguably more efficient and contributes more to consumer and societal welfare. This is because deterrence through fines and penalties may not, on their own, be enough to ensure compliance, simply because deterrence does not address business or societal perceptions of the “morality” of the behaviour in question and therefore, does not foster a real ethical business culture.
CCPC has drafted various guidelines in its pursuit to fulfil its mandate of promoting and enhancing competition and consumer welfare in the economy for the benefit of the people of Zambia. Predominant among the guidelines includes; Merger Regulation Guidelines, Fines Guidelines as well as the Settlement Procedure Guidelines. The Merger Guidelines give practical advice and guidance on the application of the relevant procedures and assessment methods set out in the Competition and Consumer Protection Act (the Act) and in the regulation. Settlement Procedure Guidelines provide guidance on how enterprises that have engaged in anti-competitive behaviour propose remedies and penalties to CCPC for having broken the law.
On the other hand, the Fines Guidelines were formulated to demonstrate to the business how CCPC has arrived at certain fines, and what CCPC takes into consideration when arriving at a fine. For instance, aggravating factors may include; role of the enterprise as a leader in or an instigator of the infringement, repeated violation, prevalence of the alleged offence, duration of the conduct among others.Mitigating factors may include; role of the enterprise, for instance, was the enterprise acting under duress or pressure, was it the first time the firm is found guilty of violating the Act, is the alleged offender willing to accept lesser enforcement options e.g. give undertakings, enter into consent agreement level of cooperation by the offender in providing information and evidence, termination of the violation as soon as CCPC intervenes and so on.
In addition, CCPC conducts talks and training to both the private and the public sector, trade associations as well as professional associations. For instance, last year’s talks were conducted with institutions which included Professional Associations, Manufacturers’ Association and a training for Judges and Magistrates. Besides, CCPC also conducts talks to institutions of learning such as high schools, colleges and universities with the view to increasing levels of compliance and awareness. CCPC also strives to ensure compliance and build a competition culture by disseminating information on a weekly basis in the local Newspapers, quarterly newsletters as well as various information platforms such as website, Facebook and twitter pages.
Furthermore, CCPC continues to participate in events such as the World Competition Day and World Consumer Rights Day that are targeted at improving and enhancing the enforcement of competition and consumer protection law. CCPC, likewise, has facilitated formation of school clubs across the ten (10) provinces of the nation and awards are given for competition quizzes, academic essay competition and debates on competition and consumer protection issues.
While achieving competition compliance requires an investment by the business, including a real commitment of management time yields benefits that far exceed the cost. Having an effective culture of compliance with competition law will help a business to avoid the many adverse potential consequences of competition law infringement including the following; financial penalties, criminal convictions for those individuals involved in a cartel conduct, considerable diversion of management time and the incurring of legal costs in order to deal with investigations by competition authorities.
To sum up, Competition Authorities worldwide are following multiple approaches to create and promote a culture of competition compliance. Moving ahead, as illustrated above, the Commission will continue to help in steering competition compliance culture in Zambia.