NIGERIA LAW AND PRACTICE Contributed by: Chinyerugo Ugoji, Tiwalola Osazuwa, Rebecca Ebokpo, Jibrin Dasun, Peretimi Akinmodun, Onyinyechi Chima and Princess Otah, ǼLEX
• the combined annual turnover of the acquir - ing undertaking and the target undertaking in, into or from Nigeria equals or exceeds NGN1 billion (circa USD650,000); or • the annual turnover of the target undertak - ing in, into or from Nigeria equals or exceeds NGN500 million (circa USD320,000). Mergers are categorised into small and large mergers. A merger with an annual turnover below the stipulated threshold constitutes a small merger, and those above the threshold constitute large mergers. A transaction classified as a small merger may be implemented without notifying the FCCPC. However, where the FCCPC is of the opinion that a small merger may substantially prevent or lessen competition, it may, within six months after the implementation of that merger, require that the parties notify it of the merger. Parties to a small merger may also voluntarily notify the FCCPC of the merger at any time. Failure to obtain the approval of the FCCPC prior to the implementation of a notifiable merg - er could result in the parties being liable upon conviction to pay a fine not exceeding 10% of their turnover in the business year preceding the date of the offence. Furthermore, any steps taken by the merging parties to implement the merger without the FCCPC’s prior approval shall be void. 6.2 Merger Control Procedure Where the FCCPC determines that a small merg - er is to be notified to it, the notification is to be published within five business days after receipt by the FCCPC. The parties are to take no further steps to implement the merger until it has been approved by the FCCPC. The FCCPC is to make its decision within 20 business days of the par -
ties fulfilling the notification requirements, or can extend the time that it will consider the merger by a single period, not exceeding 40 business days, and issue an extension notice to the noti - fying party. With regard to a large merger, the FCCPC is required to respond within 60 days after the par - ties have fulfilled the notification requirements. The parties shall not implement the merger until it has been approved by the FCCPC. The FCCPC may extend the period in which it has to consider the proposed merger to 120 business days and issue an extension notice to all parties to the merger. Where the FCCPC fails to issue a report regard - ing its consideration of the merger within the prescribed periods (including any extension period where an extension notice is issued), the merger shall be deemed approved. However, the FCCPC is empowered to revoke this approval. For eligible transactions, the FCCPC may permit parties to apply under an expedited procedure, which will reduce the applicable timelines by up to 40%. The Merger Review Regulations 2020 provide for a two-stage review of a merger. In the first phase, the FCCPC’s assessment will focus on whether the transaction is likely to substantially prevent or lessen competition. If it is likely to, the parties will be allowed to offer remedies for competi - tion concerns that are of a remediable nature. Upon completion of its review, the FCCPC may approve the transaction either unconditionally or subject to accepted remedies. If the transaction still raises competition con - cerns, the FCCPC will proceed to undertake a second detailed review of the merger, in which it
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