NIGERIA Law and Practice Contributed by: Chiagozie Hilary-Nwokonko, Chukwuyere Ebere Izuogu and Priscilla Bidemi Ben-Okoh, Streamsowers & Köhn
Streamsowers & Köhn 852B Bishop Aboyade Cole Street Victoria Island Lagos Nigeria
Tel: +234 201 291 0589 Email: info@sskohn.com Web: sskohn.com
1. Legislation and Enforcing Authorities 1.1 Merger Control Legislation The Federal Competition and Consumer Protection Act 2018 (FCCPA), enacted in 2019, governs merger review and approval in Nigeria. The Banks and Other Financial Institutions Act 2020 (BOFIA) was enacted in 2020. Section 65 (1) stripped the Federal Competition and Consumer Protection Commission (FCCPC or the Commission) of its com - petition powers with regard to the financial services sector, which is under the regulatory supervision of the Central Bank of Nigeria (CBN), the financial services regulator. Section 65 (3) further assigned the compe - tition regulation powers of the FCCPC to the CBN, thereby subjecting mergers in the financial services sector to the CBN’s regulatory scrutiny. In the communications sector, Section 90 of the Nige - rian Communications Act 2003 confers broad compe - tition oversight powers on the Nigerian Communica - tions Commission (NCC, the sector-specific regulator for the Nigerian communications sector), authorising it to determine, administer, monitor, and enforce com - pliance with both general and sector-specific com - petition laws as they apply to the Nigerian commu - nications market. Pursuant to this mandate, the NCC enacted the Competition Practices Regulations 2007 (the CPR) through administrative rule-making. Regulation 26 of the CPR expressly empowers NCC to review all mergers, acquisitions, and takeovers within the communications sector. This sector-specific merger review jurisdiction is exercised concurrently
with the FCCPC, reflecting a dual regulatory frame - work for merger control in Nigeria’s communications industry. 1.2 Legislation Relating to Particular Sectors In exercising its rule-making power under the FCCPA, the FCCPC issued the Guidelines on Simplified Pro - cess for Foreign-to-Foreign Mergers with Nigerian Component (the “Foreign-to-Foreign Merger Guide - lines”). These guidelines outline, among other things, the procedure for notifying a foreign-to-foreign merger with a Nigerian component to the FCCPC and the cal - culation of applicable notification fees. In terms of foreign investment, the Nigerian Invest - ment Promotion Commission Act provides that a for - eign national can own up to 100% of a business or invest in any business except those on the negative list. Prohibited activities include: • the production of arms, ammunition, etc; • the production of and dealing in narcotic drugs and psychotropic substances; • the production of military and paramilitary wear and accoutrements, including those of the police and the customs, immigration and prison services; and • other similar activities, determined by the Federal Executive Council. 1.3 Enforcement Authorities The FCCPC is Nigeria’s lead competition authority responsible for enforcing the FCCPA. In its review of mergers involving parties that are also subject to regu - latory oversight of other sector-specific regulators, the
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