Sunday November 29, 2020 / 11:50 AM / by FCCPC / Header Image
Pursuant to Section 17,18 and 163 The Federal Competition and Consumer Protection Commission hereby issues the Merger Review Regulations 2020 with ancillary instruments to govern the notification and review of mergers under Part XII of the Federal Competition and Consumer Protection Act 2018
Merger Review Guidelines
The Federal Competition and Consumer Protection Commission (the Commission) is the regulatory authority responsible for, among other things, the administration and enforcement of the Federal Competition and Consumer Protection Act 2018 (the Act). The Commission contributes to the economic development of Nigeria by protecting and promoting competitive markets and enabling informed consumer choices.
These guidelines describe the Commission's general approach to administering the Act's merger review process applicable to proposed transactions that are the subject of a merger notification.
Legal review of mergers is an essential element of competition policy. For Nigeria's market economy to function optimally, and benefit citizens, rules are required to ensure mergers and combinations do not result in adverse effects on competition. Effective competition brings benefits to consumers, such as low prices, high quality products, a wide selection of goods and services, and innovation. Through its control of mergers, the Commission prevents mergers that would be likely to deprive customers of these benefits by significantly increasing the market power of firms.
The Commission recognises that majority of mergers do not present competition concerns and, indeed, may enhance efficiency. Nonetheless, periodically, certain transactions could potentially substantially prevent or lessen competition, thereby having a negative impact on consumers, businesses and the overall competitiveness of the economy. The Commission reviews these transactions with a view to fulfilling its mandate to protect and promote competitive markets. In discharging its merger review obligations under the Act, the Commission's priority is to identify proposed mergers that could constitute a threat to competitive markets and to allow those that do not, to proceed as expeditiously as possible.
Preserving competition in merger review, as in all areas of competition policy, is not, however, an end in itself. The ultimate goal is the promotion of economic performance, and in particular protection of consumer welfare. By seeking to preserve the competitive process, merger review plays an important role in guaranteeing efficiency in production, in preserving the incentive for enterprises to innovate, and in ensuring the optimal allocation of resources within the economy. Consumers are the beneficiaries of a properly conducted enforcement policy, enjoying fair prices and a wider choice of products and services as a result.
These guidelines outline the general principles guiding the Commission's merger analysis under Part XII of the Federal Competition and Consumer Act 2018 (the Act) (and hereinafter referred to as the "Guidelines").
The Guidelines expand on the procedural and substantive framework under the Merger Review Regulations 2020, expounding the principal analytical techniques, practices, and the enforcement policy of the Commission with respect to mergers.
With these Guidelines, the Commission seeks to identify the bases upon which it would challenge competitively harmful mergers while avoiding needless intervention with mergers that are either competitively beneficial or neutral. Most merger analysis is necessarily predictive, requiring an assessment of what will likely happen if a merger proceeds as compared to what will likely happen if it does not. Given this inherent need for prediction, these Guidelines reflect the legislative intent that merger enforcement should check competitive problems in their nascency.
The approach to merger assessment has been developed to outline the considerations that guide the Commission's merger review as well as the statutory factors relevant to the assessment. There is also an emphasis on the competitive theories of harm and the effect of constraints, which facilitates a more integrated analysis.
The Commission will continue to assess each merger on its merits according to the specific nature of the transaction, the industry and the particular competitive impact likely to result in each case. The general principles set out in these guidelines provide a framework within which mergers will be reviewed. Importantly, the application of those principles to different facts and situations may give rise to different results. Where these Guidelines provide examples, they are illustrative and do not exhaust the applications of the relevant principle.
These Guidelines also describe the main types of evidence upon which the Commission usually relies to predict whether a merger may substantially prevent or lessen competition. These Guidelines should provide an enhanced level of predictability and certainty to merger parties, their advisers, the business community and the public, by increasing the transparency of the analytical process underlying the Commission's enforcement decisions. They may also assist the adjudicatory process in developing an appropriate framework for interpreting and applying competition laws in the merger review arena.
It is not possible for these Guidelines to cover every issue or circumstance that may arise in a merger review. In practice, individual mergers involve a great variety of facts and situations, and the analysis of particular issues may need to be tailored to the specific circumstances of a merger or deal with competition issues not specifically considered in these guidelines. Accordingly, the Commission proposes to apply the Guidelines flexibly.
The unifying theme of these Guidelines is to interpret legislative intent that mergers should not be permitted to create, enhance, or entrench market power or to facilitate its exercise.
These Guidelines reflect the views of the Commission at the time of publication. Markets, economic theory, legal thinking and best practice evolve; the Commission may revise the Guidelines from time to time to reflect developments and may publish new or supplemental guidance. The latest version of the Merger Review Guidelines is always that appearing on the FCCPC's website