Dominance 2021

March 5, 2021

GENERAL FRAMEWORK 

Legal framework 

1 What is the legal framework in your jurisdiction covering the  behaviour of dominant firms? 

The Federal Competition and Consumer Protection Act 2018 (FCCPA),  which in section 72(1) prohibits the abuse of a dominant position by one  or more undertakings. 

Definition of dominance 

2 How is dominance defined in the legislation and case law?  What elements are taken into account when assessing  dominance? 

The FCCPA defines dominance in section 70(2) as a market situation  where an undertaking enjoys a position of economic strength enabling  it to prevent effective competition being maintained on the relevant  market and having the power to behave to an appreciable extent inde 

pendently of its competitors, customers and ultimately consumers. To  date, no case law exists on how dominance may be defined or assessed. In assessing dominance, pursuant to section 72(3) of the FCCPA,  the following are required to be taken into account: 

  • the market share of the undertaking or undertakings concerned in  the relevant market; 
  • its or their financial power; 
  • its or their access to suppliers or markets; 
  • its or their links with other undertakings; 
  • legal or factual barriers to market entry by other undertakings; • actual or potential competition by undertakings established within  or outside the scope of the FCCPA; 
  • its or their ability to shift supply or demand to other goods or  services; and 
  • the ability of the opposite market side to resort to other  undertakings. 

Purpose of legislation 

3 Is the purpose of the legislation and the underlying  dominance standard strictly economic, or does it protect  other interests? 

The statutory objectives stated in the FCCPA indicate that the

purpose  of the legislation is purely economic and that the criteria used for  assessing market dominance are based on economic considerations. 

Sector-specific dominance rules 

4 Are there sector-specific dominance rules, distinct from the  generally applicable dominance provisions? 

Yes, dominance rules also exist for the communications sector in  Nigeria. The Competition Practice Regulations 2007 (CPR) enacted by  the communications sector regulator, the Nigerian Communications  Commission (NCC), established a comprehensive regime for assessing  whether a communications licencee is dominant in a relevant commu 

nications market. 

This regime and how it is applied differ in some respects from the  application of the dominance provisions under the FCCPA. For instance,  unlike section 72(3) of the FCCPA which appears to require that all the  market conditions listed be taken into account when assessing domi 

nance under the FCCPA, the CPR in Regulation 18(1) instead requires  the NCC to consider at least one of the following market conditions  when assessing dominance in a relevant communications market: • the market share of the licensee, determined by reference to reve nues, numbers of subscribers or volumes of sales; 

  • the overall size of the licencee in comparison to competing licen cees particularly any resulting economies of scale or scope that  permit the larger licencee to produce products or services at  lower costs; 
  • control of network facilities or other infrastructure, access to which  is required by competing licencees and that cannot, for commercial  or technical reasons, be duplicated by competing licencees; 
  • the absence of buying power or negotiating position by customers  or consumers, including substantial barriers to switching service  providers; 
  • ease of market entry, and the extent to which actual or potential  market entry protects against the exercise of market power such  as raising prices; 
  • the rate of technological or other change in the market, and related  effects for market entry or the continuation of a dominant position. 

In addition, pursuant to Regulation 10(1) of the Telecommunications  Networks Interconnection Regulations 2007 enacted by NCC, a  communications licencee determined to be dominant in one or more  communications market relating to interconnection shall automatically  be subject to the following ex ante regulatory obligations: 

  • meet all reasonable requests for access to its telecommunications  network, in particular access at any technically feasible point on its  telecommunications network; 
  • adhere to the principle of non-discrimination with regard to inter connection offered to other licenced telecommunications operators,  in particular, it shall apply similar conditions in similar circum stances to interconnected licenced telecommunications operators  providing similar services and provide interconnection facilities  and information to other licenced telecommunications operators  under the same conditions and of the same quality as it provides  for its own service s or those of the group of companies or partners; • make available on request to other licenced telecommunications  operators considering interconnection with its telecommunications  network, all information and specifications reasonably necessary  in order to facilitate conclusion of an agreement for interconnec tion, including information on changes planned for implementation  within the next six months, unless agreed otherwise by NCC; • submit to NCC for approval and publish a Reference Interconnection  Offer, sufficiently unbundled, giving description of the interconnec tion offerings broken down into components according to market  needs and the associated terms and conditions including tariffs; and • provide access to the technical standards and specifications of its  telecommunications network with which another operator shall be  interconnected. However, it is pertinent to note that although the FCCPA pursuant  to Section 105(2) establishes a concurrent jurisdiction between the  Federal Competition and Consumer Protection Commission (FCCPC)  and NCC (and indeed other sector-specific regulators) in matters of  competition and consumer protection, the FCCPC will have precedence  over sector-specific regulators and according to Section 47(2) of the  FCCPA, all appeals or request for review of the exercise of the compe tition or consumer protection power of any sector-specific regulator  shall in the first instance be heard and determined by the FCCPC before  such appeals can proceed to the Federal Competition and Consumer  Protection Tribunal (FCCPT) established under the FCCPA. Exemptions from the dominance rules 

    5 To whom do the dominance rules apply? Are any entities  exempt? 

    The dominance rules, and generally the FCCPA, applies to all undertak ings and all commercial activities within or having effect within Nigeria.  In addition, the dominance rules will also apply to a body corporate  or agency of the Government of the Federation or a body corporate  or agency of a subdivision of the Federation, if the body corporate or  agency engages in commercial activities; and a body corporate in which  a Government of the Federation or government of a state or body corpo rate or agency of the Government of the Federation or any state or  local government has a controlling interest where such body corporate  engages in economic activities. 

    Transition from non-dominant to dominant 

    6 Does the legislation only provide for the behaviour of firms  that are already dominant? 

    Yes, the legislation applies to only dominant undertakings, it is not appli cable in circumstances where a non-dominant undertaking transitions  to a dominant undertaking. 

    Collective dominance 

    7 Is collective dominance covered by the legislation? How is it  defined in the legislation and case law? 

    Although not expressly stated (or defined), the reference to ‘one or more  undertakings’ in section 72(1) of the FCCPA suggests that a situation  of collective dominance is contemplated and may be challenged if it  is used to perpetuate an abusive conduct. In addition, an agreement  among undertakings that constitutes a concerted practice within the  meaning of the FCCPA, and has the purpose of actual or likely effect  of preventing, restricting or distorting competition is unlawful and void  and of no legal effect under the FCCPA.

    Dominant purchasers 

    8 Does the legislation apply to dominant purchasers? Are there  any differences compared with the application of the law to  dominant suppliers? 

    The FCCPA makes no distinction between a dominant purchaser and a  dominant seller, thus the dominance provisions would equally apply to  a monopsonist as they would to a monopolist. 

    Market definition and share-based dominance thresholds 9 How are relevant product and geographic markets defined?  Are there market-share thresholds at which a company will  be presumed to be dominant or not dominant? 

    For the purpose of assessing dominance, the relevant market is defined  on the basis of the following criteria: 

    • geographical boundaries that identify groups of sellers and buyers  of goods and services within which competition is likely to be  restrained; 
    • goods or services which are regarded as interchangeable or  substitutable by the consumer by reason of their characteristics,  prices and intended use; and 
    • suppliers to which consumers may turn to in the short term, if the  abuse of dominance leads to a significant increase in price or to  other detrimental effect upon the consumer. 

    However, for merger control cases, the FCCPC in the Merger Review  Guidelines (MRGs) stated that it shall conduct its merger analysis on  an ex ante basis that takes into consideration whether the likely future  state of competition without the merger (counterfactual) would be  similar to the state of competition prevailing at the time of the merger.  This analysis according to the FCCPC may also be applied to market  definition during the merger review process. Regarding market share based threshold, neither the FCCPA nor the FCCPC have at this time  set out a specific market share threshold that is presumptive of market  power. In the communications sector, a communications licencee whose  gross revenue exceeds 40 per cent of the total combined gross reve 

    nues of all communications licencees in the relevant market would be  presumed by NCC to have market power. 

    ABUSE OF DOMINANCE 

    Definition of abuse of dominance 

    10 How is abuse of dominance defined and identified? What  conduct is subject to a per se prohibition? 

    The mere exercise of market power is not prohibited in The Federal  Competition and Consumer Protection Act 2018 (FCCPA); rather it is the  exercise of such market power in an abusive manner that is prohib ited. In this regard, section 72(2) of the FCCPA describes situations in  which one or more undertakings with market power are deemed to have  abused their market power. These situations include: 

    • charging an excessive price to the detriment of consumers; and • refusal to give a competitor access to an essential facility when it is economically feasible to do so. 

    Other abusive conducts are identified on the basis of whether they are exclusionary and having an anticompetitive effect devoid of any technological efficiency or pro-competitive gain. However, pursuant to section  72(3) of the FCCPA, an undertaking shall be deemed as not abusing its  market position if its conduct: 

    • contributes to the improvement of production or distribution of goods or services or the promotion of technological oreconomic progress, while allowing consumers a fair share of the  resulting benefit; 
      • is indispensable to the attainment of the objects of paragraph (a); or • does not afford the undertaking the possibility of eliminating  competition in respect of a substantial part of the goods or services  concerned. 

      Lastly, the FCCPA prohibits certain types of restrictive agreement  because of their per se illegality irrespective of whether or not a party  to this agreement exercises market power. The prohibited agreements  are those that provide for the following: 

      • directly or indirectly fixing a purchase or selling price; • dividing markets by allocating customers, suppliers, territories or  specific types of goods or services; 
      • limiting or controlling production or distribution of any goods or  services, markets, technical development or investment; • engaging in collusive tendering; and 
      • making the conclusion of an agreement subject to acceptance by  other parties of complementary obligations, which by their nature  or according to commercial usage have no connection with the  subject of the agreement. 

      Exploitative and exclusionary practices 

      11 Does the concept of abuse cover both exploitative and  exclusionary practices? 

      Yes. Under the FCCPA, an abusive conduct could constitute either an  exploitative practice that is detrimental to consumer welfare or an  exclusionary practice that anticompetitively forecloses a competitor. 

      Link between dominance and abuse 

      12 What link must be shown between dominance and abuse?  May conduct by a dominant company also be abusive if it  occurs on an adjacent market to the dominated market? 

      Owing to the absence of competition case law, it is not clear whether it  is necessary to show a causal connection between dominance and an  abusive practice, although it does appear that conducts listed in section  72(2) of the FCCPA will constitute an abuse if committed by a dominant  undertaking. 

      It is also not clear whether a conduct by a dominant undertaking  will constitute an abuse of a dominant position if it occurs in a market  other than the market in which the undertaking is dominant. However, in  2013, the Nigerian Communications Commission (NCC), in imposing the  ex ante regulatory obligations of price-cap for wholesale services and  price floor for retail services on two communications licensees deter 

      mined to be collectively dominant in these communications markets,  was concerned that the market power exercised by these licensees in  the market for wholesale service could be leveraged to distort competi tion in the market for retail communications services. 

      Defences 

      13 What defences may be raised to allegations of abuse of  dominance? When exclusionary intent is shown, are

      defences  an option? 

      An undertaking challenged for exercising its market power in an  abusive manner may argue pursuant to section 72(3) of the FCCPA that  the challenged conduct falls into one of the exceptions to an otherwise  abusive conduct. In addition, pursuant to section 73(2) that the chal 

      lenged conduct constitutes an exclusive dealing arrangement or market  restriction between or among affiliated or interconnected undertak ings is an arguable defence. In the same vein, a merger that raises an  

      anti-competitive concern may be approved by the Federal Competition  and Consumer Protection Commission (FCCPC), provided the merging  parties are able to establish in line with the criteria set out in the Merger  Review Guidelines (MRGs) that the efficiency gains resulting from the  merger outweighs its anti-competitive effects. 

      As a preliminary remark, it is pertinent to note that since January  2019 when the FCCPA was enacted, there are yet to be competi tion case laws or FCCPC advisories that gives guidance on how the  following underlisted abusive practices by a dominant undertaking  may be analysed for the purpose of challenging them. In addition, as  these conducts all constitute original issue of law, it is conceivable  for Nigeria courts, the Federal Competition and Consumer Protection  Tribunal (FCCPT) or the FCCPC to look to body of jurisprudence from  well-established competition jurisdictions as persuasive authority in  analysing them. 

      SPECIFIC FORMS OF ABUSE 

      Types of conduct 

      14 Rebate schemes 

      Although The Federal Competition and Consumer Protection Act 2018  (FCCPA) lists several examples of abusive practices that are prohib ited, this list is not exhaustive and rebate schemes are neither listed  as abusive nor expressly prohibited. However, conducts not expressly  mentioned in FCCPA may still constitute an abusive practice if it has  the same effect similar to another prohibited abusive practice, or is  exclusionary and has an anticompetitive effect that outweighs its tech nological efficiency and other pro-competitive gains. 

      15 Tying and bundling 

      Contractual tying, technical tying and bundling are prohibited as an  abusive practice in section 72(2)(d)(iii) of the FCCPA. 

      16 Exclusive dealing 

      Exclusive dealing is not expressly mentioned in the FCCPA as one of  the examples of a conduct that constitutes an instance of an abuse of  a dominant position. However, to the extent that exclusive dealing has  the same effect as a contractual tying, it may be challenged pursuant to  section 72(2)(d)(iii) of the FCCPA. 

      Lastly, exclusive dealing arrangement or market restriction  between or among affiliated or interconnected undertakings, does not  constitute an abusive conduct by a dominant undertaking. 

      17 Predatory pricing 

      Predatory pricing is prohibited by section 72(2)(d)(iv) of the FCCPA,  which provides that an abuse of a dominant position occurs where the  dominant undertaking engages in the selling of goods or services below  their marginal or average cost. Accordingly, by virtue of this provi 

      sion, the primary cost model for assessing a predatory pricing conduct  under the FCCPA is whether it is below marginal or average cost or  conversely, any pricing of goods or services by a dominant undertaking  below marginal or average cost will be presumed to be predatory. 

      Owing to the absence of competition case law or FCCPC advisory,  it is not clear whether proof of recoupment is an essential element of a  predatory pricing conduct.

      18 Price or margin squeezes 

      A margin squeeze occurs where a vertically integrated undertaking  prices an upstream (or wholesale) input that it sells to its own down stream (or retail) competitors at an excessive price and/or predatorily  prices its own retail services, thus making it impossible for its retail  competitors to compete profitably. A margin squeeze is not expressly  prohibited in the FCCPA, however both excessive pricing and predatory  pricing are separate abusive conducts and individually constitute an  abuse of a dominant position pursuant to sections 72(2)(a) and 72(2)(d) 

      (iv) of the FCCPA respectively. As at this time, it is not clear whether a  situation of margin squeeze would be challenged under either (or both)  of these provisions or in the alternative challenged under the broadly  phrased ‘exclusionary act’ conduct referenced in section 72(2)(c), which  is broad enough to cover an otherwise abusive conduct not expressly  mentioned in the FCCPA. 

      19 Refusals to deal and denied access to essential facilities 

      The FCCPA does not expressly make any provision that a refusal to deal  by a dominant undertaking constitutes an abusive conduct, however  conducts not expressly prohibited in the FCCPA may still be caught by  section 72(2)(c) if it is exclusionary and has an anti-competitive effect  that outweighs its technological efficiency and other pro-competitive  gains. The FCCPA in section 72(2)(d)(i) also provides that requiring or  inducing a supplier or customer not to deal with a competitor consti tutes an abusive conduct by a dominant undertaking, to the extent that  the anti-competitive effect of this conduct outweighs its technological  efficiency and pro-competitive gains. 

      The refusal by a dominant undertaking to grant a competitor access  to an essential facility constitutes an abuse of a dominant position which  can be challenged. It is also important to state that the refusal by a  dominant undertaking to supply scarce goods to a competitor when  supplying those goods is economically feasible constitutes an abuse of  a dominant position. 

      20 Predatory product design or a failure to disclose new  technology 

      Both predatory product design and failure to disclose new technology  are not expressly mentioned in the FCCPA as

      statutory examples of  an abuse of a dominant position. However, to the extent that any of  these conducts is exclusionary and has an anticompetitive effect that  outweighs its technological efficiency and other pro-competitive gains,  it may be interpreted as constituting an abusive conduct and will come  within the scope of section 72(2)(c) if engaged by an undertaking with  market power in the relevant market. 

      21 Price discrimination 

      Price discrimination is not a statutory example of an abusive conduct  engaged by a dominant undertaking mentioned in the FCCPA. However,  Regulation 8(b) of the Competition Practice Regulations 2007 (CPR)  applicable in the communications sector, provides that ‘discriminating  in the provision of interconnection or other communications services or  facilities to competing licensees, except under circumstances that are  objectively justified based on supply conditions, such as discrimination  based on the costs of supply’ is a conduct deemed to result in a substan tial lessening of competition. 

      22 Exploitative prices or terms of supply 

      Exploitative prices practices such as the charging of excessive price by a  dominant undertaking constitutes an instance of an abuse of a dominant  position pursuant to section 72(2)(a) of the FCCPA. 

      On the other hand, exploitative terms of supply while not expressly  mentioned in the FCCPA may fall under prohibitions relating to abusive  conducts engaged by a dominant undertaking. For instance, selling  goods or services on the condition that the buyer purchases separate  goods or services unrelated to the object of a contract, or forcing a buyer  to accept a condition unrelated to the object of a contract constitutes an  exploitative term of supply if it is imposed by a dominant undertaking as  part of its contractual stipulation of supply. 

      23 Abuse of administrative or government process 

      Abuse of administrative or government process is not listed as an  abusive conduct in the FCCPA. 

      24 Mergers and acquisitions as exclusionary practices 

      The dominance rules of the FCCPA do not apply to mergers and acquisi tions; rather mergers are assessed on the basis of whether it is likely to  substantially prevent or lessen competition. In this regard, mergers that  would result in a dominant position of the merged undertaking would  also be caught by the substantial lessening of the competition test used  for assessing mergers under the FCCPA. 

      25 Other abuses 

      The statutory examples of abusive practices have been listed in the  responses to specific forms of abuse above. However, the list is not  exhaustive and conduct not expressly mentioned in the FCCPA may  still constitute an abusive practice if it has the same effect similar to  another prohibited abusive conduct, or is exclusionary and has an anti 

      competitive effect that outweighs its technological efficiency and other  pro-competitive gains. 

      ENFORCEMENT PROCEEDINGS 

      Enforcement authorities 

      26 Which authorities are responsible for enforcement of the  dominance rules and what powers of investigation do they  have? 

      The Federal Competition and Consumer Protection Commission (FCCPC)  is statutorily authorised by the Federal Competition and Consumer  Protection Act 2018 (FCCPA) to enforce the provisions of the FCCPA.  In carrying out its enforcement powers, the FCCPA, inter alia, author 

      ises the FCCPC to enter and search any premises, inspect and remove  from the premises any article, document or extract in the possession  or under the control of any person. The FCCPC is also authorised by  the FCCPA in circumstances where there are grounds to believe that a  violation, civil or criminal of the provisions of the FCCPA or any regu 

      lation made thereunder, was, is being or will be committed, take any  interim measure including authorising an authorised officer to exercises  its powers pending the issuance of a warrant to that effect. The FCCPC  is also authorised by the FCCPA to request for information or document  from any person. 

      In addition to the enforcement power of the FCCPC, the FCCPA  authorises the Federal Competition and Consumer Protection Tribunal  (FCCPT) to adjudicate over conducts prohibited under the FCCPA. The  Court of Appeal is charged with the responsibility of reviewing petitions

      by the FCCPC and issuing warrants for the commencement of investiga tion into activities of undertakings presumed to be anticompetitive. A warrant issued in this regard confers on the authorised officer  the powers to: 

      • enter and search the place or premises specified in the warrant  within 30 days of issuance; 
      • use such assistance as is reasonable in the circumstance; • use force for gaining entry and for breaking open any article or  thing as is reasonable in the circumstance; 
      • search for and remove documents or any article or thing that the  person executing the warrant believes on reasonable grounds may  be relevant; 
      • where necessary, make copies of documents or extract from  documents, that the person executing the warrant believes on  reasonable grounds may be relevant; and 
      • where necessary, to require a person to reproduce or assist any  person executing the warrant to reproduce, in usable form, infor mation recorded or stored in a document or retrieval system. 

      Sanctions and remedies 

      27 What sanctions and remedies may the authorities impose?  May individuals be fined or sanctioned? 

      Where the FCCPC establishes that an undertaking has abused or is  abusing its position of dominance, the FCCPC may direct the under taking to immediately cease its abusive practice. An undertaking that  abuses its dominant position commits an offence and is liable on convic tion to a fine of not less than 10 per cent of its turnover in the previous  financial year or to such higher percentage as the Court of Appeal may  determine given the circumstance of the particular case. A director of  an undertaking that fails to cease an abusive practice after receiving an  order of the FCCPC to that effect is liable on conviction to imprisonment  for a term not exceeding three years, or to the payment of a fine not  

      exceeding 50 million Nigerian naira or to both fine and

      imprisonment. The FCCPT and the Court of Appeal are also empowered to impose sanctions on an undertaking found to be conducting its activities in a manner that is in contravention of the FCCPA. The sanctions range from monetary fines that could be a percentage of the turnover of  the preceding business year or such other percentage as the Court of  Appeal may determine under the circumstances of the particular case.  It should be noted that the FCCPT is only able to impose administrative  penalties which are stated in the FCCPA whereas the Court of Appeal  has some discretion on the sanctions to be imposed. 

      Enforcement process 

      28 Can the competition enforcers impose sanctions directly or  must they petition a court or other authority? 

      The FCCPC and other sector-specific regulators with competition  enforcement mandate can impose sanctions directly without recourse  to the court or the FCCPT. However, all appeals or request for review  of the exercise of the competition or consumer protection powers of  any sector-specific regulator shall in the first instance be heard and  determined by the FCCPC before such appeals can proceed to FCCPT.  Any sanction imposed by the FCCPC is subject to review by the FCCPT  in the first instance. 

      Enforcement record 

      29 What is the recent enforcement record in your jurisdiction? 

      On 1 September 2020, the FCCPC commenced an inquiry into the activi ties of pay-TV providers in order to determine inter alia, whether any  particular pay-TV provider has abused (or is abusing) its dominant  

      position in the TV broadcasting industry. As at the time of this writing,  this inquiry is ongoing and the FCCPC is yet to provide any update. In  the communications sector, the Nigerian Communications Commission  (NCC) has imposed accounting separation on the following communica 

      tions licencees; four mobile network operators, one tower company and  one submarine cable operator to inter alia, ensure that their charges  for telecommunication services are cost based, transparent and non discriminatory and to prevent any undue discrimination or practices  that substantially lessens competition such as cross-subsidisation,  margin squeezes, etc. The accounting separation commenced from 15  July 2020 and will remain valid until reviewed by the NCC. 

      Contractual consequences 

      30 Where a clause in a contract involving a dominant company  is inconsistent with the legislation, is the clause (or the entire  contract) invalidated? 

      Under Nigerian law, a clause that is illegal and violates any law is void  and unenforceable and may be severed from the rest of the contract,  insofar as the illegal part is not fundamental to the performance of  the contract and the rest of the contract can be enforced without the  void part. 

      Private enforcement 

      31 To what extent is private enforcement possible? Does the  legislation provide a basis for a court or other authority  to order a dominant firm to grant access, supply goods or  services, conclude a contract or invalidate a provision or  contract? 

      Yes, private enforcement is possible. Under the FCCPA, a private  party who is a consumer may file a complaint with the FCCPC in the  prescribed manner and form alleging that an undertaking has acted in a  manner inconsistent with the provisions of the FCCPA. Notwithstanding  the redress which the FCCPC may impose, the consumer also has a  right of civil action for compensation or restitution in a court of compe 

      tent jurisdiction under the FCCPA. 

      In addition, a consumer protection group accredited by the FCCPC  has a right to commence or undertake any act to protect the interests  of a consumer individually or of consumers collectively in any matter  before the FCCPC or a court of competent jurisdiction. 

      Damages 

      32 Do companies harmed by abusive practices have a claim for  damages? Who adjudicates claims and how are damages  calculated or assessed? 

      Yes, a company harmed by an abusive practice may request for a  compensation order pursuant to section 154(1) of the FCCPA from  the court that an undertaking was convicted for an offence under the  FCCPA, requiring the undertaking to pay compensation for any personal  injury, loss or damage resulting from that offence of such an amount  as it may deem fit or assessed by a competent professional authority. 

      As at the time of writing, the provisions of the FCCPA have not been  tested before the courts. However, damages under Nigerian law of tort  is guided by the Latin principle of restitutio in integrum, that is insofar  as the damages are not too remote, the plaintiff shall be restored, as far  as money can do it, into the position he or she would have been if the  tort had not occurred.

      Appeals 

      33 To what court may authority decisions finding an abuse be appealed?

      Decisions emanating from sector-specific regulators may, in the first
      instance, be reviewed by the FCCPC before an appeal can be made to the FCCPT. Decisions from the FCCPC are in the first instance determined by the FCCPT before an appeal can be made to the Court of Appeal. Both the FCCPC and FCCPT may review the facts and the law as the case may be.

      the case may be. 

      UNILATERAL CONDUCT 

      Unilateral conduct by non-dominant firms 

      34 Are there any rules applying to the unilateral conduct of non dominant firms? 

      The Federal Competition and Consumer Protection Commission  (FCCPC) contains no provision that applies to the unilateral conduct of  non-dominant firms. 

      UPDATE AND TRENDS 

      Forthcoming changes 

      35 Are changes expected to the legislation or other measures  that will have an impact on this area in the near future? Are  there shifts of emphasis in the enforcement practice? 

      In the past year, the FCCPC engaged in massive consumer educa tion initiatives which seemed to be concentrated in the fast moving  consumer-goods and pharmaceutical industries and also took a number  of enforcement activities within these sectors. The FCCPC continues  to maintain that companies operating in these industries improve  their mechanisms for resolving consumer disputes to benefit of their  consumers. 

      Coronavirus 

      36 What emergency legislation, relief programmes and other  initiatives specific to your practice area has your state  implemented to address the pandemic? Have any existing  government programmes, laws or regulations been amended  to address these concerns? What best practices are advisable  for clients? 

      During the coronavirus pandemic, the FCCPC issued the Business  Guidance Relating to COVID-19 On Business Co-operation/Collaboration  and Certain Consumer Rights Under the Federal Competition and  Consumer Protection Act (FCCPA) which is intended to provide clarity  for businesses and consumers in relation to the following; (1) authorisa 

      tions for cooperation among businesses during the covid-19 pandemic;  and (2) certain consumer rights under Part XV of the FCCPA during the  covid-19 pandemic. With respect to (1), the FCCPC exempted in certain  circumstances, categories of agreements or practices between compa 

      nies made in response to the pandemic and also provides a process  by which these companies may seek authorisation from the FCCPC  to engage in such agreements or practices. Regarding (b), the FCCPC  spelt certain rights of consumers having regard to prices of goods and  services considered essential to protect the health of consumers during  the pandemic, to ensure that their prices are not artificially inflated as  a result of collusion or the abusive exercise of market power in the  market, or both. 

      Chukwuyere E Izuogu chukwuyere@sskohn.com 

      Michelle Akpaka 

      michelle@sskohn.com 

      Oyeniyi Immanuel 

      niyi@sskohn.com 

      Tamuno Atekebo 

      tamuno@sskohn.com 

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