NIGERIA Law and Practice Contributed by: Chiagozie Hilary-Nwokonko, Chukwuyere Ebere Izuogu and Priscilla Bidemi Ben-Okoh, Streamsowers & Köhn
7. Third-Party Rights, Confidentiality and Cross-Border Co-Operation 7.1 Third-Party Rights Third parties are involved in the merger review pro - cess. Regulation 16 (1) of the MRR requires the FCCPC to publish a notice of a proposed merger upon satisfactory notification by the merger parties. Under Regulation 16 (2) of the MRR, the publication of the notice shall include an invitation to any interested third parties to comment on the merger by providing a writ - ten submission to the FCCPC within the prescribed timelines. In addition, Regulation 16 (3) of the MRR requires the merger parties, in notifying the merger to the FCCPC, to provide evidence of service of notice of the proposed merger to any registered trade union that represents the employees in the acquiring and target undertakings respectively, or to the employees or representatives of the employees of the acquiring and target undertakings if there are no such registered trade unions. 7.2 Contacting Third Parties In conducting a second-level review of the proposed merger, the FCCPC may hold hearings with third par - ties and issue detailed questionnaires to market par - ticipants, such as key customers or competitors, and industry experts, such as relevant public authorities or regulators. The FCCPC does not generally market-test the rem - edies proposed by the merger parties. However, in assessing the effectiveness of a proposed remedy, the FCCPC would consider its competitive impact – ie, whether the remedy is designed to address the identified competition harm that is likely to result from the merger, with due consideration to how the remedy changes the competitive dynamics of the market and the incentives of the post-merger firm post-remedy. In doing this, the FCCPC will set out terms in the Rem - edy Order that specify and anticipate potential issues that may arise during the implementation phase to help actualise the intended competitive impact (eg, restoring competition) and protect against the merg - ing parties’ ability to thwart the intended competitive impact.
7.3 Confidentiality The FCCPC publishes public notice of a proposed merger; however, commercial information is treated with the utmost confidentiality by the FCCPC at the request of the merger parties, including business secrets. If the merger parties believe that their inter - ests would be harmed if any of the information they are required to supply were to be published or other - wise divulged to other parties, they should submit this information separately, with each page clearly marked “Business Secrets” under separate cover. They must also give reasons why this information should not be divulged or published. In the case of business combinations or in other cas - es where the notification is completed by more than one of the parties, business secrets may be sever - ally submitted under separate cover and referred to in the notification as an annex. All such annexes must be included in the submission for a notification to be considered complete. 7.4 Co-Operation With Other Jurisdictions As a matter of policy, the FCCPC encourages the merger parties to facilitate international co-operation between the FCCPC and other competition authorities reviewing the same merger. During the pre-notification consultation and actual notification of the merger, the FCCPC encourages the merger parties to disclose the jurisdictions outside Nigeria where the merger is sub - ject to regulatory clearance under merger review rules. Furthermore, the FCCPC encourages the undertak - ings concerned to submit confidentiality waivers that would enable the FCCPC to share information with other competition authorities outside Nigeria review - ing the same merger. Each waiver is intended to facili - tate joint discussion and analysis of a merger as it allows the FCCPC to share relevant information with another competition authority reviewing the same merger, including confidential business information obtained from the undertakings concerned.
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