NIGERIA LAW AND PRACTICE Contributed by: Chinyerugo Ugoji, Tiwalola Osazuwa, Rebecca Ebokpo, Jibrin Dasun, Peretimi Akinmodun, Onyinyechi Chima and Princess Otah, ǼLEX
will consider whether there are any factors that are sufficient to offset its competition concerns – eg, technological efficiencies or other pro-com - petitive gains, or public interest grounds. If the FCCPC makes a positive determination on either ground, it will approve the transaction subject to conditions it deems appropriate; otherwise, the transaction will be refused. 6.3 Cartels The legal framework governing cartels consists of the FCCPA and the Restrictive Agreement and Trade Practices Regulations 2022, issued by the FCCPC. The FCCPA prohibits restrictive agree - ments, which are defined as any agreement among undertakings or a decision of an asso - ciation of undertakings that has the purpose (or actual or likely effect) of preventing, restricting or distorting competition in any market, unless such agreement has been authorised by the FCCPC. In addition, an undertaking is prohibited from requesting another undertaking to refuse to sell or purchase any goods or services with the intention of harming certain undertakings. The FCCPA also prohibits the unlawful withholding of products from a dealer. An undertaking will be treated as withholding goods or services from a dealer if: • it refuses to supply those goods or services to the order of the dealer; • it refuses to supply the goods or services to the dealer except at prices (or on terms or conditions as to credit, discount or other matters) that are significantly less favourable than those at or on which the undertaking normally supplies those goods or services to other dealers carrying on business in similar circumstances; or
• it treats the dealer in a manner less favour- able than that in which it normally treats other dealers in respect of time or methods of deliv - ery or other matters arising in the execution of the agreement. The FCCPA prohibits any term or condition of an agreement for the sale of any goods or services to the extent that it purports to establish mini - mum prices to be charged on the resale of the goods or services in Nigeria. 6.4 Abuse of Dominant Position The FCCPA prohibits the abuse of a dominant position by one or more undertakings in a market. The Abuse of Dominance Regulations, issued by the FCCPC in 2022, set out the framework for determining whether an undertaking occupies a dominant position in a relevant market and whether it has engaged in conduct amounting to an abuse of that dominance. One way in which an undertaking may abuse its dominant position is by engaging in conduct such as: • charging excessive prices to the detriment of consumers; • refusing to grant a competitor access to an essential facility where it is economically fea - sible to do so; or • engaging in exclusionary acts, such as refus - ing to supply scarce goods to a competitor. An abuse may also occur where an undertaking sells goods or services below their marginal or average cost, unless the resulting technological efficiencies and other pro-competitive gains out - weigh the anti-competitive effects of such con - duct. Exclusive dealing arrangements or market restrictions between affiliated undertakings will
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