UNEDITED RELEASE:
Guidance Regarding Federal Competition and Consumer Protection Commission’s (Commission) Merger Notification Process/ Interpretation of the Law on Other Competition Issues under the Federal Competition and Consumer Protection Act (FCCPA); During COVID-19 Pandemic.
Tuesday, April 28, 2020: The Federal Competition and Consumer Protection Commission understands that the Covid-19 pandemic materially affects business processes and relevant transactions; and requires coordinated and sometimes unusual action in addressing vital issues related to a national response and business sustainability during the pandemic.
In furtherance of this, and government containment measures restricting movement and limiting human resource capacity, the Commission now provides guidance (Business Guidance Relating to Covid-19 On Business Co-operation/Collaboration and Certain Consumer Rights Under the FCCPA) for continuing operations with respect to certain competition and consumer protection regulations.
The Commission prioritizes Covid-19 related matters, including Merger Review, Advisories, or Investigations. For Merger Review, the Commission will accept remote filing/electronic notifications:
where there is a possibility or imminent failure of the business of a merging party, unless, the combination is urgently considered;
where there is a host jurisdiction other than Nigeria, where there are time limitations but requiring notification and determination by the FCCPC prior to conclusion of the underlying transaction;
Other time sensitive situations such as where other regulatory or similar approvals may expire or lapse, or such approvals were conditioned upon presenting a notification to the FCCPC within a specific period.
In these instances, the notifying party shall title the notification as “Extenuating Circumstantial Notification (ECN)” noting which of the circumstances above applies with an explanation and supporting evidence to demonstrate the extenuating circumstance(s). The notification should be filed by sending same to MergerNotification@fccpc.gov.ng , including attachments associated or relevant to the notification. Where the attachment is in excess of 25MB, it shall be converted to a zip file prior to sending. Where zipping is impracticable, attachments may be uploaded to a cloud storage and a downloadable link to the attachments provided as part of the notification. The existing expedited service alternative remains an option at the election of the notifying party or parties.
Responding to the Covid-19 pandemic will sometimes require unprecedented and uncontemplated measures to be effective or optimal. The Commission recognizes this, and as such provides further guidance on cooperation and collaboration (which guidance is articulated in detail in the Guidance document noted above, published and available at http://fccpc.gov.ng/news-events/announcements/2020/04/28/guidelines-on-competition-and-consumer-protection-during-covid-19-pandemic/.
This Guidance only relates to Covid-19 associated requests or initiatives, particularly those addressing public health/safety and food supply. The Commission will provide expedited guidance to enquires about the Commissions adopted view/interpretation of the law governing such cooperation/collaboration where businesses so request.
The Commission is keen to support businesses responding to this national emergency and or addressing market distortions or constraints created by the pandemic. The Commission recognizes and understands that for the purpose of this period, joint ventures may become necessary, loosely, structured or informal. The Commission further appreciates that joint procurement of raw and other materials may be a more efficient and timely option especially for multiple small scale competitors (e.g. base materials like alcohol for multiple small sanitizer producers).
The Commission will adopt the interpretation of Section 59 of the FCCPA in a manner consistent with accomplishing national priorities relevant to Covid-19. For further information, please refer to the guidance document in the link above.
Babatunde Irukera
Chief Executive Officer
