NIGERIA Law and Practice Contributed by: Chiagozie Hilary-Nwokonko and Chukwuyere Ebere Izuogu, Streamsowers & Köhn
4. Substance of the Review 4.1 Substantive Test
geographic area in which competition may be harmed. In this regard, the FCCPC defines the relevant product market in terms of the set of products that customers consider to be close substitutes, while the relevant geographic mar - ket is defined in terms of the location of suppli - ers; this includes those suppliers that customers consider to be feasible substitutes and it may be local, state-wide, regional, national or wider (transcending national boundaries). Although neither the FCCPA nor the FCCPC explicitly mentions a “de minimis level,” a merger or acquisition involving two or more companies that operate in the same product or geographic market is eligible for notification through the simplified procedure if their combined market share is less than 15%. The FCCPC states that this simplified procedure may be applicable for mergers that do not pose significant concerns regarding competition. 4.3 Reliance on Case Law As a matter of practice, the FCCPC allows the merger parties to rely on cases and theories from Nigeria and other jurisdictions as judicial prec - edents when articulating their views on the over - all impact of the merger on market competition. There is no preference for cases from any par - ticular jurisdiction; what is most relevant is that the cases and theories relied on by the parties are applicable to the views they advance. 4.4 Competition Concerns In reviewing mergers, the FCCPC is concerned about the following anti-competitive harms that can arise from those mergers: • unilateral effects in a horizontal merger that involves two competing firms and removes
Section 94 (1) of the FCCPA requires the FCCPC to undertake two levels of review. At the first lev - el, the FCCPC will determine whether the merger is likely to substantially prevent or lessen com - petition (SPLC) in a relevant market in Nigeria. Where the outcome of the FCCPC’s review is negative, the merger will be approved. Howev - er, where the FCCPC determines that an SPLC situation does exist, it will undertake a second- level review that involves an in-depth substan - tive assessment of the merger. At this level, the FCCPC will also examine whether factors such as efficiency and public interest considerations can offset or reverse the SPLC situation. The CBN will assess a merger on whether or not it is likely to lead to an SPLC situation in a rel- evant financial services sector market. The NCC will assess a merger on whether it is capable of a substantial lessening of competition or would result in a dominant position in a relevant com - munications market in Nigeria. 4.2 Markets Affected by a Transaction As a general principle, the FCCPC would not assume that the merging parties operate in the same relevant market(s), even when there appears to be some overlap between their prod - ucts and the geographic areas in which they con - duct business. In addition, the FCCPC consid - ers that the relevant market(s) being analysed for competitive effects may not necessarily corre - spond to the product categories or service areas established by the merging firms or their rivals for operational purposes. Thus, the conceptual framework adopted by the FCCPC within which relevant information can be organised to assess the competitive effect of a merger is, in the first instance, to identify the products or services and
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