NIGERIA Law and Practice Contributed by: Chiagozie Hilary-Nwokonko and Chukwuyere Ebere Izuogu, Streamsowers & Köhn
into or from Nigeria equals or exceeds NGN1 billion; or • the annual turnover of the target undertak - ing in, into or from Nigeria equals or exceeds NGN500 million. Where the applicable turnover is in a foreign cur - rency, the FCCPC uses the prevailing exchange rate determined by the CBN at the end of the financial year preceding the notification or the date on which the contract creating the merger came into force, whichever is later. 2.7 Businesses/Corporate Entities Relevant for the Calculation of Jurisdictional Thresholds The businesses or corporate entities that have generated turnover attributable to a business or derived from Nigeria are relevant for calculating the turnover. In addition, as explained in 2.6 Cal- culations of Jurisdictional Thresholds , turnover may be calculated on the basis of the combined annual turnover of the acquiring undertaking and the target undertaking or based on the annual turnover of only the target undertaking. Turnover may also be calculated group-wide, provided it is attributable to and/or derived from Nigeria. According to the FCCPC’s prac - tice, “group-wide” refers to an undertaking in which any of the merger parties has a control - ling interest. Lastly, the FCCPC does not pre - scribe a particular procedure for changes in the business during the reference period; however, it is conceivable that discussions in this regard may be had with the FCCPC as part of the pre- notification consultation. 2.8 Foreign-to-Foreign Transactions Foreign-to-foreign transactions that have a local component are subject to merger control. According to the FCCPC, a local component
exists if a foreign entity has a local nexus, such as having subsidiaries in Nigeria, or if it satis - fies the turnover test provided in the Threshold Regulations. When the target undertaking has no subsidiaries, sales, or assets in Nigeria, no turnover has been generated, and therefore, notification to the FCCPC is not required. 2.9 Market Share Jurisdictional Threshold No market share jurisdictional threshold applies in Nigeria at the time of writing. 2.10 Joint Ventures As a general rule, any joint venture must meet the following basic criteria to qualify for a merger review: • economic integration of the parties’ business activities (for example, through a contribu - tion of productive assets to a new business undertaking); • elimination of competition between the parties in the joint venture’s field of activity through this contribution; and • the relative permanence of the joint business activity. Where these basic criteria are met, the joint ven - ture will be brought within the general scope of merger review if its creation typically involves the transfer of voting equity or assets and by refer - ence to the underlying combination of previously independent businesses. In addition, a full-function joint venture must be notified to the FCCPC if the value of its assets or turnover exceeds the turnover threshold. A full-function joint venture operates on a lasting basis with all the functions of an autonomous economic entity, competes with other under - takings in a relevant market, and has sufficient
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