NIGERIA: FCCPC ISSUES MERGER REVIEW REGULATIONS AND OTHER INSTRUMENTS

By Xolani Nyali,Tamara Dini Thursday, December 03, 2020
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On 20 November 2020, the Nigerian Federal Competition and Consumer Protection Commission (FCCPC) published new Merger Review Regulations (Regulations), Merger Review Guidelines, and several ancillary instruments (all of which are accessible here), and withdrew the existing guidelines for notification of foreign-to-foreign mergers with a Nigerian component. 

Notable features include the following:  

Instances of control

The Regulations provide detailed guidance on when control may be said to be acquired or established, and hence a merger created, specifically focusing on situations where a minority shareholder or related party may be able to exercise material influence over the whole or part of the business of another undertaking.

The Regulations specifically record the following:

  • the acquisition of shareholding or voting rights above 25% confers upon an acquirer a rebuttable presumption of control, whereas the acquisition of shareholding or voting rights below 15% will generally not attract scrutiny;
  • the notification of purely internal restructures within the same group of undertakings will not be required if there is no change in control;
  • in relation to joint ventures, notification will only be required in respect of joint ventures with all the functions of an autonomous economic entity that have a lasting impact in the market (i.e. transitory contractual arrangements with no lasting impact are not notifiable);
  • the FCCPC will investigate a series of related transactions or successive events which take place within a period of two years, and which are not individually subject to mandatory filing, but cumulatively meet the requirements for mandatory notification (i.e. so-called ‘creeping mergers’); and
  •  the acquisition of a minority interest in an undertaking related to the acquirer, either as a competitor or upstream supplier or downstream customer, will be considered by the FCCPC as potentially anticompetitive, and may require merger notification, if the acquisition will result in anticompetitive effects.

Foreign mergers

The Regulations provide that the merger control provisions apply not only to persons and undertakings domiciled in Nigeria, but also to foreign undertakings, which although not incorporated in Nigeria, may have subsidiaries in Nigeria or may produce goods or services which are sold into the country.

Triggers for merger review

The FCCPC will assert its jurisdiction on mergers with local nexus where the prescribed financial thresholds for large mergers are met:

Financial thresholds for mandatory notification

Combined annual turnover of merging parties in, into or from Nigeria

NGN  1 billion (c. ZAR 40 million /
EUR 2.2 million / USD 1.3 million)  

 OR

Turnover of the target undertaking in, into or from Nigeria

NGN 500 million (c. ZAR 20 million / EUR 1.1 million / USD 1.3 million)

It remains unclear whether the Regulations contemplate that a merger could meet the thresholds even if the target undertaking has turnover of less than
NGN 500 million in, into or from Nigeria or where the target undertaking generates no revenue in or from Nigeria.

The FCCPC retains its right in terms of the Federal Competition and Consumer Protection Act (Act) to compel merger parties to notify mergers falling below the thresholds set out above (i.e. small mergers) within six months of implementation, if the FCCPC is of the view that the merger would result in a substantial prevention or lessening of competition. Parties may also voluntarily notify the FCCPC of their small merger. In both instances, a merger filing fee is payable.

Merger filing fees

The merger filing fee is calculated on a sliding scale and as a percentage of either the combined annual turnover of the merger parties in, into or from Nigeria or the transaction consideration, whichever is the higher: 

Threshold - based on combined turnover of merging parties

Fee payable – based on transaction consideration

 OR  

Fee payable – based on combined annual turnover of merging parties

First NGN 500 million (c.
ZAR 20 million / EUR 1.1 million / USD 1.3 million)

0.3%

0.3%

 Next NGN 500 million

 0.225%

 0.225%

 Any sum thereafter

 0.15%

 0.75%

In the context of international transactions, the transaction consideration is likely to far outweigh turnover in, into or from Nigeria, and the merger filing fee payable may be astronomical and out of kilter with the actual effects of the merger in Nigeria, which may be limited.

It remains to be seen whether the FCCPC will adopt a literal approach to the filing fee calculation or whether a more pragmatic approach, limiting the calculation of the fee to the value of the Nigerian component of the transaction consideration – where possible – will be adopted. It is hoped that in time, the Regulations will be amended to inter alia provide a filing fee cap or adopt a flat fee for large mergers and notifiable small mergers.

Review period

The FCCPC will assess mergers in a phased manner, with phase one being an initial review and phase two being an in-depth assessment. 

Phase one large mergers may be decided within 60 business days from notification, and Phase 2 large mergers within a further 60 business days.

For small mergers that are voluntarily notified or called upon by the FCCPC to be notified: phase one small mergers may be decided within 20 business days from the date of notification, and if subsequently found to be more complex, may be categorised as Phase 2 mergers and the review period extended by a further 40 business days.

Prohibition against prior implementation

The FCCPC intends to publish a further instrument, Administrative Penalties Regulations, 2020, which will provide guidance on the scope and method of calculation of penalties for offices under the Act, including violation of the standstill obligation for mergers.

Negative clearance

The Regulations have introduced a negative clearance procedure, which is available to merger parties who are uncertain as to whether their transaction constitutes a merger and/or whether it is notifiable.

A fee of NGN 2.5 million (c. ZAR 100 000 / EUR 5 500 / USD 6 500) is payable for a negative clearance application.

The Regulations are silent on the timeframe within which the FCCPC will assess an application for negative clearance.

International cooperation

The Regulations require merger parties to upfront indicate the other jurisdictions in which the merger will be filed and if so, whether the merger parties are willing to offer a waiver to support coordination between the FCCPC and the competition authorities in those jurisdictions.

The FCCPC is commended on its effort to clarify its jurisdictional ambit as well as both the procedural and substantive aspects of the merger control regime.

Certain aspects, however, remain unclear and raise significant concerns. This is to be expected given that the FCCPC is a young regulator and that the Regulations have not had the benefit of public comment.

Firms doing business in Nigeria should make sure they assess whether acquisitions require notification in the early stages of planning the transactions, and should have a comprehensive competition law compliance program in place.