NIGERIA Law and Practice Contributed by: Chiagozie Hilary-Nwokonko, Chukwuyere Ebere Izuogu and Priscilla Bidemi Ben-Okoh, Streamsowers & Köhn
• where the price of the relevant product(s) would likely be higher in the relevant market than it would be in the absence of the merger (“material price increase”); or • where sufficient new entry would not occur rap - idly enough to prevent a material price increase or counteract the effects of such an increase. Where the merging firms have pre-existing market power, individually or collectively, the FCCPC will con - sider smaller impacts on competition resulting from the merger to meet the test of being substantial. 5.2 Parties’ Ability to Negotiate Remedies The FCCPC may apply remedies, or the merger par - ties may propose remedies, including: • structural remedies, which typically involve the disposal of a business or assets from the merger parties to create a new source of competition (if sold to a new entrant) or to strengthen an existing source of competition (if sold to an existing com - petitor); • behavioural remedies, non-structural remedies or “conduct” remedies, which are ongoing measures designed to modify, regulate or constrain the future conduct of the post-merger firm; and/or • hybrid remedies, which are a combination of both structural and behavioural remedies and will be applied by the FCCPC when, for example, a merger involves multiple markets or products and competition is best preserved by structural relief in some relevant markets and by non-structural relief in others. 5.3 Legal Standard While remedies are not generally required to meet a specific legal standard to be deemed acceptable, the FCCPC must, as a matter of practice, ensure that any proposed remedy is appropriately tailored to address the identified competition harm(s). The remedy must also effectively mitigate or eliminate such harm(s) to ensure that the merger does not substantially lessen competition. 5.4 Negotiating Remedies With Authorities Merger parties may put forward remedies to the FCCPC at any time during the merger review pro -
cess, including during pre-notification consultations. Alternatively, the FCCPC may allow the merger parties to propose remedies in any of the following circum - stances. After the initial first-level review of the merger, if the FCCPC determines that the merger is likely to give rise to an SPLC situation, it shall issue an issues paper to the merger parties that, among other things, requires the presentation of a written response addressing the competition concerns raised in the issues paper and proposing remedies as applicable to alleviate them. After consideration of the merger parties’ response to the issues paper, if the FCCPC still finds that the merger is likely to lead to an SPLC situation and the remedies proposed by the merger parties do not address the competition issues identified, it shall issue a Statement of Objections and commence the second level of the merger review process. At this level, the merger parties may put forward a remedies proposal in their response to the Statement of Objec - tions to address the competition concerns raised by the FCCPC in the issues paper. Where the FCCPC is satisfied with the presentation of the merger parties, it may approve the merger at this stage, subject to requiring the merging parties to: • take an action to remedy, mitigate or prevent the substantial lessening or prevention of competition; or • fulfil any other conditions as may be appropriate in the circumstance of the case. Thereafter, the FCCPC shall publish a non-confidential version of the remedies proposal, giving interested third parties the opportunity to comment on the effec - tiveness and sufficiency of the proposals. At least ten working days will be allocated for this consultation process, following which the FCCPC will determine whether the remedies proposal will be accepted and finalise the remedies package alongside the final deci - sion on the merger. The power of the FCCPC to approve a merger sub - ject to conditions also includes the power to impose any remedies, whether or not agreed by the merger parties.
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