NIGERIAN COMPETITION COMMISSION ACCEPTS MERGER FILINGS
Further to the promulgation of the Nigerian Federal Competition and Consumer Protection Act, 2019 (Act) (refer to our newsflash here), the Nigerian Securities and Exchange Commission (SEC) and the Nigerian Federal Competition and Consumer Protection Commission (FCCPC) have issued a joint advisory and guidance note (the Advisory) dealing with transitional arrangements in respect of merger notifications.
Prior to the Advisory being published, there was a regulatory gap in respect of merger notifications in Nigeria as mergers were not notifiable to the SEC (the regulator of mergers prior to the Act coming into effect), nor to the FCCPC (the new regulator, established in terms of the Act) during the period between the Act coming into effect, and the publication of thresholds for mandatory notification. As the Act provides for the mandatory notification of large mergers only and without thresholds being determined for categories of mergers to be notified, merging parties are not in a position to determine whether or not their merger is notifiable.
However, the Advisory seeks to address the regulatory gap that appeared to exist in the absence of thresholds. The Advisory recognises that the FCCPC has started the process of determining thresholds but states that other business combinations requiring notification continue to occur. Therefore, while the FCCPC technically commenced operations on 1 April 2019, the FCCPC and SEC have agreed that the following transitional provisions apply with effect from 3 May 2019:
- all merger notifications will be reviewed under the existing Consolidated SEC Rules and Regulations of 2013, guidelines and fee notices;
- the FCCPC and SEC will jointly review merger notifications;
- the FCCPC will provide decisions;
- filing fees must be paid to the FCCPC;
- merger notifications submitted to the SEC, without having been decided, will be reviewed in terms of the process above and the FCCPC will issue a decision; and
- merger notifications must be submitted to any of the premises referred to in the Advisory.
We remain in close contact with Udo-Udoma & Bel-Osagie, our ‘best friends’ firm in Nigeria, with respect to further developments.