ADVOKS GLOBAL · KENYA
Competition Act
22. Application to practices of trade associations
Edition: 2022-12-31 · In force
22. Application to practices of trade associations
(1)The following practices conducted by or on behalf of a trade association are declared to be restrictive trade practices—(a)the unjustifiable exclusion from a trade association of any person carrying on or intending to carry on in good faith the trade in relation to which the association is formed, and in determining whether an exclusion from such an association is unjustifiable, the Authority may examine, in addition to any other matters which it considers relevant, the application of any rules of that association and the reasonableness of those rules;(b)the making, directly or indirectly, of a recommendation by a trade association to its members or to any class of its members which relates to—(i)the prices charged or to be charged by such members or any such class of members or to the margins included in the prices or to the pricing formula used in the calculation of those prices; or(ii)the terms of sale (including discount, credit, delivery, and product and service guarantee terms) of such members or any such class of members and which directly affects prices, profit margins included in the prices, or the pricing formula used in the calculation of prices.(2)A recommendation by a trade association as described in subsection (1)(b) shall be deemed to be a restrictive trade practice notwithstanding that any statement in the recommendation may or may not be complied with as the members or class of members to whom the recommendation is made think fit.(3)A recommendation made by any person for the purpose of or having the effect, directly or indirectly, of enabling any trade association to defeat or evade the provisions of this Act shall be deemed to have been made by that trade association.(4)Where a specific recommendation whether express or implied is made by or on behalf of a trade association to its members or to any class of its members, concerning the action to be taken or not to be taken by them in relation to any matter affecting the trading conditions of those members, the provisions of this Act shall apply as if membership of the association constituted an agreement under which the members agreed with the association and with each other to comply with the recommendations, notwithstanding anything to the contrary in the constitution or rules of the association.(5)A member of a trade association who expressly notifies the association in writing that he disassociates himself entirely from an agreement made by that association or, as the case may be, that he will not take action or will refrain from action of a kind referred to in an express or implied recommendation made by that association shall not, in the absence of proof to the contrary, be deemed to be a party to that agreement or, as the case may be, a member of the association who has agreed to comply with the recommendation.(6)Any person who contravenes the provisions of this section commits an offence and shall be liable on conviction to imprisonment for a term not exceeding five years or to a fine not exceeding ten million shillings, or both.C – Abuse of Dominant Position