NIGERIA Law and Practice Contributed by: Chiagozie Hilary-Nwokonko and Chukwuyere Ebere Izuogu, Streamsowers & Köhn
appropriately tailored to address the identified competition harm(s). The remedy must also effectively mitigate or eliminate such harm(s) to ensure that the merger does not substantially lessen competition. 5.4 Negotiating Remedies With Authorities Merger parties may put forward remedies to the FCCPC at any time during the merger review process, including during pre-notification con - sultations. Alternatively, the FCCPC may allow the merger parties to propose remedies in any of the following circumstances. After the initial first-level review of the merger, if the FCCPC determines that the merger is likely to give rise to an SPLC situation, it shall issue an issues paper to the merger parties that, among other things, requires the presentation of a writ - ten response addressing the competition con - cerns raised in the issues paper and proposing remedies as applicable to alleviate them. After consideration of the merger parties’ response to the issues paper, if the FCCPC still finds that the merger is likely to lead to an SPLC situation and the remedies proposed by the merger parties do not address the competi - tion issues identified, it shall issue a Statement of Objections and commence the second level of the merger review process. At this level, the merger parties may put forward a remedies proposal in their response to the Statement of Objections to address the competition concerns raised by the FCCPC in the issues paper. Where the FCCPC is satisfied with the presentation of the merger parties, it may approve the merger at this stage, subject to requiring the merging parties to:
• take an action to remedy, mitigate or prevent the substantial lessening or prevention of competition; or • fulfil any other conditions as may be appropri - ate in the circumstance of the case. Thereafter, the FCCPC shall publish a non- confidential version of the remedies proposal, giving interested third parties the opportunity to comment on the effectiveness and sufficiency of the proposals. At least ten working days will be allocated for this consultation process, follow - ing which the FCCPC will determine whether the remedies proposal will be accepted and finalise the remedies package alongside the final deci - sion on the merger. The power of the FCCPC to approve a merger subject to conditions also includes the power to impose any remedies, whether or not agreed by the merger parties. 5.5 Conditions and Timing for Divestitures There is no prescribed timeline for the implemen - tation of remedies according to the decisional practice of the Commission. However, when approving a remedies package, the FCCPC may stipulate specific timeframes for implementing the remedies to address identified competi - tion concerns. In certain cases, the merger may be completed prior to the implementation of the remedies, particularly where the remedy is post-approval in nature. In such instances, the FCCPC will, as a matter of practice, require the merging parties or the post-merger entity to pro - vide an undertaking to implement the remedy as a condition for approval. There is no specific penalty for failing to imple - ment an approved remedy; however, non- compliance with any order or directive of the
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