FEDERAL COMPETITION BILL

(Draft)

PART I THE FEDERAL COMPETITION COMMISSION ………….………... 5

PART II GENERAL PROVISIONS ………..……………………………………. 13

PART III CONTRACTS, ARRANGEMENTS AND RESTRICTIVE

PRACTICES SUBSTANTIALLY LESSENING

COMPETITION ………………………………….…………….. 14

PART IV ABUSE OF DOMINANT POSITION OF MARKET POWER ….………. 18

PART V MERGERS, TAKEOVERS AND ACQUISITIONS ……………………. 20

PART VI REGULATION OF PRICES …………………………………………….. 22

PART VII AUTHORISATIONS, CLEARANCES AND EXEMPTIONS …………. 25

PART VIII PROVISIONS RELATING TO REGULATED INDUSTRIES ………… 36

PART IX ENFORCEMENT, REMEDIES, AND APPEALS …………………... 37

PART X MISCELLANEOUS PROVISIONS ……………………………………. 41

SCHEDULES …………………………………………………………………… 54

PART I

THE FEDERAL COMPETITION COMMISSION

Section 1: Establishment of the Federal Competition Commission

Section 2: Membership of the Commission

Section 3: Tenure of office

Section 4: Proceedings of the Commission

Section 5: Termination of appointment of members

Section 6: Disclosure of interest

Section 7: Functions of the Commission

Section 8: Officers and employees

Section 9: Remuneration and expenses of members of the Commission

Section 10: Funds of the Commission

Section 11: Expenditures of the Commission

Section 12: Accounts, audits and estimates

Section 13: Commission to have regard to economic policies of the Federal Government.

Section 14: Regulations

PART II

GENERAL PROVISIONS

Section 15: Territorial Scope of the Bill

Section 16: Application of the Bill to State-owned Enterprises and Transitional Provisions

Section 17: Laws relating to restraint of trade, operation of companies and business name, intellectual property rights and transactions not affected

PART III

CONTRACTS, ARRANGEMENTS AND RESTRICTIVE PRACTICES SUBSTANTIALLY LESSENING COMPETITION

Section 18: Prohibition of Contracts, Agreements, etc., deemed to be in restraint of trade or substantially lessen competition

Section 19: Certain contracts, etc., with respect to exclusionary provisions

Section 20: Prohibition of certain provisions of contracts, etc., with respect to prices deemed to be in restraint of trade or substantially lessen competition

Section 21: Exemptions in respect of certain contracts

Section 22: Exemptions in respect of transactions on assets of a business or shares of a company

Section 23: Exemptions in respect of pre-existing contracts

Section 24: Offences relating to Parts III

PART IV

ABUSE OF DOMINANT POSITION OF MARKET POWER

Section 25: Abuse of Dominant position in a market prohibited

Section 26: Resale price maintenance Prohibited

Section 27: Prohibition of Withholding or preventing the supply of goods

Section 28: Offences relating to Parts IV

PART V

MERGERS, TAKEOVERS AND ACQUISITIONS

Section 29: Prohibition of certain mergers, takeovers and acquisitions

Section 30: Offences relating to Part V

Section 31: Control of mergers, takeovers and acquisitions

Section 32: The Commission may report to the President as to control of mergers, takeovers and acquisitions

Section 33: Mere transfer of market dominance excluded

PART VI

REGULATION OF PRICES

Section 34: Declaration of price regulation

Section 35: The Commission may report to the President as to price regulation

Section 36: Regulated goods or services not to be supplied except in accordance with authorised price

Section 37: Records to be kept for pricing purposes

PART VII

AUTHORISATIONS AND CLEARANCES

Section 38: Authorisation with respect to contracts, arrangements and restrictive practices substantially lessening competition

Section 39: Effect of Authorization

Section 40: Authorization not to be granted in relation to contracts, etc. made before determination by the Commission

Section 41: Procedure for application for Authorisation of contracts, arrangements and restrictive practices substantially lessening competition

Section 42: Determination of applications for authorisation of contracts, arrangements and restrictive practices substantially lessening competition

Section 43: The Commission to prepare proposed determination in relation to contracts, arrangements and restrictive practices substantially lessening competition

Section 44: Procedure for holding a conference

Section 45: The Commission may vary or revoke authorisations

Section 46: The Commission may give clearances for mergers, takeovers and acquisitions

Section 47: The Commission may grant authorisation for mergers, takeovers and acquisitions

Section 48: Provisions applying to applications for clearance and authorisation for mergers, takeovers and acquisitions

Section 49: Effect of Clearance or authorisation

Section 50: The Commission may accept undertakings

Section 51: Conferences in relation to mergers, takeovers and acquisitions

Section 52: Authorised prices for regulated goods or services to be determined by the Commission

Section 53: The Commission may authorise provisional prices

Section 54: Alternative undertakings as to prices of regulated goods or services

Section 55: Considerations to be observed by the Commission

Section 56: Conferences in relation to authorisation of prices for regulated goods and services

PART VIII

PROVISIONS RELATING TO REGULATED INDUSTRIES

Section 57: Designation of Regulated Industries

Section 58: Exemption of Regulated Industries

PART IX

ENFORCEMENT, REMEDIES, AND APPEALS

Section 59: The Commission may hear complaint of persons

Section 60: Procedure for administrative hearing

Section 61: Persons entitled to file applications for review

Section 62: Court may order divestiture of assets or shares of a company in certain cases

Section 63: Prosecution for offences

PART X

MISCELLANEOUS PROVISIONS

Section 64: The Commission may require person to supply information or documents or give evidence

Section 65: Power to Search

Section 66: Powers conferred by warrant

Section 67: Warrant to be produced

Section 68: Other duties of the person who executes a warrant

Section 69: Power of the Commission to take evidence

Section 70: Power of the Commission to prohibit disclosure of information, documents and evidence

Section 71: Notices

Section 72: Service of Notices

Section 73: Offences

Section 74: Determinations of the Commission

Section 75: Delegation by the Commission

Section 76: Proceedings of the Commission privileged

Section 77: Repeals and Savings

Section 78: Interpretation

Section 79: Short Title

SCHEDULES

Schedule 1: Professional Associations, (pursuant to section 16(2) of this Bill)

FEDERAL COMPETITION BILL

A Bill to provide the necessary conditions for market competition and to stimulate creative business activities, protect consumers, and promote the balanced development of the national economy; by prohibiting restrictive contracts and business practices that substantially lessen competition and preventing the abuse of dominant positions of market power and anticompetitive business combines, and to establish the Federal Competition Commission for the effective implementation and enforcement of this Bill and for matters connected therewith.

PART I - THE FEDERAL COMPETITION COMMISSION

Section 1: Establishment of the Federal Competition Commission

1(1) There is hereby established, a body to be known as the Federal Competition Commission (in this Bill referred to as the “Commission”).

1(2) The Commission shall be a body corporate with perpetual succession and a common seal.

1(3) The Commission shall be capable of suing and being sued, and, in the exercise of its functions and powers under this Bill, it may acquire, hold, and dispose of real and personal property and do and suffer all such acts and things as bodies corporate may do and suffer.

1(4) The Commission shall have power to borrow money for the purposes of its functions under this Bill.

1(5) For the purpose of carrying out its functions under this Bill, the Commission shall have power to enter into agreements, understandings, arrangements or other forms of co-operation with similar bodies in other countries and/or international agencies or bodies.

1(6) The headquarters of the Commission shall be situated in the Federal Capital Territory, and there shall be established one or more additional offices as the Commission shall from time to time determine.

Section 2: Membership of the Commission

2(1) The Commission shall consist of nine members, of whom:

(a) Three shall be full-time members; and

(b) Six shall be part-time members.

2(2) The full-time members shall comprise of an economist, a lawyer and a professional in the field of management.

2(3) A person shall not be appointed a full time member of the Commission unless he has at least ten years cognate experience as an economist, legal practitioner or professional in the management field as the case may be.

2(4) The members of the Commission shall be appointed by the President subject to confirmation by the Senate: Provided that confirmation by the Senate shall not be required when a member of the Commission is being reappointed for another term. Each appointment shall indicate whether the member appointed is a full-time or a part-time member.

2(5) The President shall appoint the Executive Chairman of the Commission from amongst the full-time members.

2(6) The President shall not appoint a person a member of the Commission unless, in the opinion of the President, such person is qualified for appointment, having regard to the functions and powers of the Commission, by virtue of that person's knowledge of or experience in industry, commerce, economics, law, accountancy, public administration, or consumer affairs.

2(7) The powers of the Commission shall not be affected by any vacancy in its membership, or by any deficiency in the appointment of any member.

2(8) The Commission may co-opt representatives of sector regulatory agencies to participate in its proceedings as it deems fit. Such co-opted representatives shall participate in the Commission’s proceedings on terms to be specified in the instrument co-opting them.

2(9) The Executive Chairman and the other full time members shall be responsible for the day to day administration of the Commission subject to oversight by the Commission, and in this respect the Executive Chairman and the other full time members shall report to the Commission in monthly and other meetings.

Section 3: Tenure of office

3(1) Subject to section 5 of this Bill, a person appointed a full-time member of the Commission shall hold office for a term of four years but may be reappointed for two more terms of four years each.

3(2) Subject to section 5 of this Bill, a person appointed a part-time member of the Commission shall hold office for a term of three years but may be reappointed for two more terms of three years each.

Section 4: Proceedings of the Commission

4(1) The Executive Chairman shall preside at every meeting of the Commission. Where the Executive Chairman becomes incapable of acting, by reason of illness, absence, or other sufficient cause or during any vacancy in the office of the Executive Chairman, or if the Executive Chairman considers it proper or desirable for him not to preside personally over any specified matter, the Executive Chairman may designate any member of the Commission to have and exercise any or all the powers, functions, and duties of the Executive Chairman, and where no such designation has been made, the members of the Commission present in any given deliberation may appoint one of their members to have and exercise any or all the powers, functions, and duties of the Executive Chairman.

4(2) At any meeting of the Commission, a quorum shall be five; provided that at least two full-time members and three part-time members are present.

4(3) Subject to this section, the Executive Chairman shall convene such meetings of the Commission as the Executive Chairman may consider necessary for the efficient performance of the functions of the Commission under this Bill.

4(4) Any three members of the Commission may request the Executive Chairman to call a meeting of the Commission.

4(5) If after ten days from the date of the request referred to in subsection (4) the Executive Chairman has not called a meeting of the Commission, any three members may call such meeting by jointly issuing notice of the meeting to the members.

4(6) Meetings of the Commission shall be held at such times and places as the Executive Chairman may from time to time determine; Provided that the Commission shall meet at least once every month.

4(7) All questions arising at any meeting of the Commission shall be determined by a majority of votes of the members present and voting.

4(8) The Executive Chairman shall have a deliberative vote and, in the event of a tie of votes, shall also have a casting vote.

4(9) Subject to the provisions of this Bill, the Executive Chairman may give directions regarding the procedure to be followed at or in connection with any meeting of the Commission.

4(10) For the purposes of this section, the term “deliberative vote” means the ordinary vote of the Executive Chairman of the Commission cast in any proceeding of the Commission in his capacity as a voting member of the Commission; and the term “casting vote” means a second vote by the Executive Chairman which is necessary to break a tie in the number of votes cast on both sides of an issue.

4(11) A determination in writing signed, or assented to by letter, telegram, cable, telex, facsimile message or electronic mail, by all the members of the Commission shall be as valid and effectual as if it had been made at a meeting of the Commission duly called and constituted by those members.

Section 5: Termination of appointment of members

5(1) The President may, subject to approval by the Senate, terminate the appointment of a member of the Commission for disability, bankruptcy, neglect of duty, misconduct, incompetence, conviction for a crime involving dishonesty or moral turpitude or failure to comply with section 6 of this Bill, and in the case of a member possessed of professional qualifications, for the disqualification of such a member by any competent authority from the practice of his or her profession in any part of Nigeria.

(2) The President may, pending the approval by the Senate of the termination of a member of the Commission, suspend such member from office.

(3) Nothing in subsection (1) shall permit the termination of the membership of any person in the Commission solely on the ground that such person voluntarily withdrew from his profession.

Section 6: Disclosure of interest

6(1) A member of the Commission who is directly or indirectly interested in any person or enterprise, the affairs of whom, or which, are being deliberated upon or being considered preparatory for a determination by the Commission, or is interested in any contract made or proposed to be made by the Commission shall, immediately the relevant facts come to his knowledge, in writing, disclose the nature of his interest to all the members of the Commission.

6(2) A disclosure under subsection (1) of this Section shall be discussed in the first meeting of the Commission following such disclosure. The fact of the disclosure and the deliberations thereon shall be recorded in the minutes of the Commission, and the interested member shall:

(a) Not take part, and, in the case of an ongoing matter, shall discontinue from participating, in any deliberation or decision of the Commission with regard to the matter in respect of which such member has disclosed an interest; and

(b) Be excluded for the purpose of constituting a quorum of the Commission for any such deliberation or decision.

6(3) If the interested member is the Executive Chairman, the members shall nominate one of their number to preside at the meeting referred to in subsection (2).

Section 7: Functions of the Commission

7(1) In addition to the functions conferred on it by any other provision of this Bill, the Commission shall:

(a) Periodically initiate policy review on competition and related issues with a view to safeguarding and protecting public interest.

(b) Protect consumers by nurturing a free and fair competitive business environment.

(c) Monitor the abuse of market dominance and mergers, takeovers, acquisitions and any other form of business combination in order to prevent undue collaborative or unwholesome practices in the business environment.

(d) Advise the government on sectors of the economy that should be protected from adverse or predatory activities of competitors and the appropriate intervention methods to be used by government.

(e) Coordinate the activities of sectoral regulators as they relate to, or may impact on, competition with a view to maintaining coherence in policy implementation on competition and matters related thereto.

(f) Subject to the provisions of Section 63 of this Bill, investigate violations of this Bill and initiate criminal prosecutions for such violations.

(g) Initiate the resolution of disputes or complaints by issuing clear directives to violators and applying sanctions in form of fines where necessary.

(h) Make, or co-operate in making, information available to the public with respect to the carrying out of the functions and the exercise of the powers of the Commission under this Bill.

7(2) Where the Commission is required under this Bill to determine whether or not, or the extent to which, a conduct, activity or practice will result, or will likely result, in a benefit to the public, the Commission shall have regard to any economic efficiencies that the Commission considers will result, or will likely result, from that conduct.

Section 8: Officers and employees

8(1) The Commission may from time to time appoint such officers and employees (including employees on secondment from other agencies of the Federal Government) as it deems necessary for the efficient performance and exercise of its functions and powers, and, subject to the provisions of this section, may at any time remove any employee from such employment.

8(2) Subject to the terms and conditions of employment, the Commission may at any time terminate or suspend the employment of any employee.

8(3) Service in the Commission shall be approved service for the purpose of the Pensions Act and accordingly, officers and other persons employed in the Commission shall, in respect of their service in the Commission, be entitled to pensions, gratuities and other retirement benefits enjoyed by persons holding equivalent grades in the public service of the Federation; Provided that where the Commission deems it proper, nothing in this Bill shall prevent the appointment of a person to any office on terms which preclude the grant of a pension and gratuity in respect of that office.

Section 9: Remuneration and expenses of members of the Commission:

9(1) Members of the Commission shall be paid from the funds of the Commission:

(a) Such remuneration, if any, as the Commission may from time to time determine, having regard to the recommendations of the National Salaries, Incomes and Wages Commission; and

(b) Such allowances, if any, as the Commission, may from time to time determine, having regard to the recommendations of the National Salaries, Incomes and Wages Commission, to meet any reasonable expenses incurred by such members in connection with the business of the Commission.

9(2) While making recommendations, the National Salaries, Incomes and Wages Commission shall have due regard to the following principles:

(a) The specialised nature of work to be performed by the Commission;

(b) The need to ensure the financial self-sufficiency of the members;

(d) The nature of the expenses incurred by the members, including national and international travel expenses.

Section 10: Funds of the Commission

10. The Commission shall be financed and provided with funding for recurrent and capital expenditure from:

(b) Monies that the President, may allocate to the Commission, from public funds, as a take-off grant at the commencement of this Bill.

(d) Grants-in-aid, development loans or other financial support as may be obtained from such domestic or international agencies as may be approved by the President; Provided that the condition for such grant shall not contradict or undermine the implementation of this Bill or the independence of the Commission.

(e) Income derived by the Commission from its investment and deposit of surplus monies as provided herein; and

(f) Such fees, fines and other financial impositions as may from time to time be payable to the Commission under this Bill.

Section 11: Expenditures of the Commission

11. The Commission may, from time to time, apply the proceeds of the fund established pursuant to section 10 of this Bill, as follows:

(a) To the cost of administration of the Commission;

(b) For reimbursing members of the Commission for such expenses as may be authorized or approved by the Commission;

(d) For or in connection with all or any of the functions of the Commission under this Bill.

Section 12: Accounts, audits and estimates

12(1) The Commission shall open at any bank or banks in Nigeria such accounts as are necessary for the exercise of its functions and powers.

12(2) All monies received by the Commission, or by any officer or employee of the Commission on behalf of the Commission, shall, as soon as practicable after it has been received, be paid into such bank account of the Commission as it may from time to time determine.

12(3) The withdrawal or payment of money from any such account shall be authorised by a prior resolution of the Commission, or shall be submitted to the Commission for confirmation at its first ordinary meeting after the date of payment.

12(4) The withdrawal or payment of money from any such account shall be by cheque signed by such person or persons as the Commission may from time to time authorise.

12(5) The Commission shall keep proper accounts and records in relation to its revenues and expenditures and shall prepare in respect of each year a statement of accounts.

12(6) The accounts of the Commission shall be audited not later than three months after the end of the year by auditors appointed by the Commission from a list and in accordance with guidelines supplied by the Auditor-General of the Federation; and the fees of the auditors and the expenses relating to the audit shall be paid from the funds of the Commission.

12(7) The Commission shall prepare an estimate of the expenditure and income of the Commission for the ensuing year and, when prepared, such estimate of expenditure and income shall be submitted to the President.

12(8) The Commission shall, not later than 6 months from the end of each year, submit to the President, a report on the activities of the Commission during the immediately preceding year and shall include in such report, the audited accounts of the Commission.

Section 13: Commission to have regard to economic policies of the Federal Government

13(1) In the exercise of its powers under this Bill, the Commission shall have regard to the economic policies of the Government as the President may from time to time transmit in writing to the Commission.

13(2) The President shall cause every statement of economic policy transmitted to the Commission under subsection (1) of this section to be published in the Gazette.

Section 14: Regulations

14(1) The Commission may, from time to time, make regulations for all or any of the following purposes:

(a) Prescribing the procedure to be followed under this Bill to, and in respect of applications and notices to, and proceedings of, the Commission;

(b) Prescribing forms of applications, notices, and other documents required for the purposes of this Bill, and requiring the use of such forms;

(c) Providing for such other matters as are contemplated by or necessary for giving full effect to the provisions of this Bill and for its due administration.

(d) Prescribing fees to be paid for the purposes of this Bill.

14(2) The Executive Chairman of the Commission shall, within 6 months of its take off, submit for approval by the Commission some rules of procedure to govern matters such as the forms and methods of filing a complaint and any other process with the Commission.

PART II – GENERAL PROVISIONS

Section 15: Territorial Scope of the Bill

15(1) This Bill shall apply to all conducts within and outside the territories of the Federal Republic of Nigeria by any person resident or carrying on business in Nigeria, to the extent that such conduct substantially affects a market in Nigeria.

15(2) Section 29 of this Bill shall apply to the acquisition outside Nigeria by a person (whether or not the person is resident or carries on business in Nigeria) of the assets or shares of a business to the extent that such acquisition substantially affects a market in Nigeria.

Section 16: Application of the Bill to State-owned Enterprises and Transitional Provisions

16(1) This Bill shall be binding on and applicable to all persons mentioned in this Bill, including:

(a) The Federal Government, the government of each of the States of the Federation and each of the Local Governments, in so far as the said governments engage in trade or commercial activity;

(b) Every body corporate or other agency of the Federal Government or of any State of the Federation or of any Local Government, in so far as such corporation or other agency engages in trade or commercial activity;

(c) Every body corporate in which the Federal Government, the government of any State of the Federation, any Local Government or a body corporate referred to in paragraph (b) of this section has a controlling interest in so far as it engages in trade or commercial activity.

16(2) With respect to professional services provided by professional associations listed in Schedule 1 of this Bill, the Commission may establish guidelines for the application of certain provisions of this Bill to the supply of services or conduct of business by members of such professional associations.

16(3) For the purposes of subsection (2) of this section, the Commission, shall from time to time review the list of professional groups to be included in the list in Schedule 1 of this Bill with a view to determining which such groups are eligible to be accorded any privileges and exemption with respect to the application of any provision of this Bill.

16(4) On the advice of the National Economic Council and upon consultation with the Commission, the President may determine if deemed reasonable or desirable for the development and growth of the Nigerian economy, special exemptions from the provisions of this Act for any sector or enterprises in specific sectors of the economy. Such exemptions shall be published in the Gazette.

Section 17: Laws relating to restraint of trade, operation of companies and business name, intellectual property rights and transactions not affected

17(1) Nothing in this Bill shall limit or affect any rule of law relating to restraint of trade not inconsistent with any of the provisions of this Bill.

17(2) Nothing in this Bill shall limit or affect any rule of law relating to the operation and management of companies or registration and ownership of business names not inconsistent with any of the provisions of this Bill.

17(3) Nothing in this Bill shall limit or affect any rule of law relating to intellectual property rights and transactions not inconsistent with any of the provisions of this Bill.

17(4) No rule of law referred to in subsections (1), (2) or (3) of this section shall affect the interpretation of any of the provisions of this Bill.

PART III – CONTRACTS, ARRANGEMENTS AND RESTRICTIVE PRACTICES SUBSTANTIALLY LESSENING COMPETITION

Section 18: Prohibition of Contracts, Agreements, etc., deemed to be in restraint of trade or substantially lessening competition

18(1) Save as otherwise provided in this Bill, no person shall:

(a) Enter into a contract or arrangement, or arrive at an understanding, containing a provision that has the purpose, or has or is likely to have the effect, of restricting trade or otherwise substantially lessening competition in a market; or

(b) Give effect to a provision of a contract, arrangement, or understanding that has the purpose, or has or is likely to have the effect, of restraining trade or otherwise substantially lessening competition in a market.

18(2) Subject to section 23 of this Bill, subsection (1)(b) of this section shall apply in respect of a contract or arrangement entered into, or an understanding arrived at, whether before or after the commencement of this Bill.

18(3) No provision of a contract, whether made before or after the commencement of this Bill, that has the purpose, or has or is likely to have the effect, of substantially lessening competition in a market shall be enforceable.

18(4) Without limitation to the generality of subsection (1) of this Bill, a contract or an arrangement or a provision thereof substantially lessens competition in a market if such contract or arrangement or understanding, or provision thereof, is aimed at or have or is likely to have the following effect in the market:

(a) Restricting output or production;

(b) Price fixing

(d) Collusive tendering; or

(e) Denial of access to market, in general, and to a factor of production or raw material, in particular.

18(5) For the purposes of this section, a provision of a contract, arrangement, or understanding shall be deemed to have or to be likely to have the effect of substantially lessening competition in a market if that provision and the other provisions of such contract or arrangement; or the provisions of any other contract or arrangement to which a person or any affiliated body corporate is a party taken together, have or are likely to have the effect of hindering or preventing competition in that market.

Section 19: Certain contracts, etc., with respect to exclusionary provisions

19(1) Without limitation to the generality of section 18 of this Bill, no person shall:

(a) Enter into a contract, or arrangement, or arrive at an understanding, that contains an exclusionary provision; or

(b) Give effect to an exclusionary provision of a contract, arrangement, or understanding.

19(2) For the purposes of this section, a provision of a contract or an arrangement is an exclusionary provision if:

(a) It has the purpose of preventing, restricting, or limiting the supply of goods or services to, or the acquisition of goods or services from, any particular person or class of persons, either generally or in particular circumstances or on particular conditions, by all or any of the parties to the contract or arrangement, or if a party is a body corporate, by a body corporate that is affiliated with that party; and

(b) The particular person or the class of persons to which the provision relates is in competition with one or more of the parties to the contract, arrangement or understanding in relation to the supply or acquisition of those goods or services.

19(3) For the purposes of subsection (2)(b) of this section, a person is in competition with another person if that person or any affiliated enterprise or body corporate is, or is likely to be, or, but for the relevant provision, would be or would likely be, in competition with the other person, or with an affiliated enterprise or body corporate, in relation to the supply or acquisition of all or any of the goods or services to which that relevant provision relates.

19(4) Subsection (2) of this section applies to an exclusionary provision of a contract or arrangement made, or understanding arrived at, whether before or after the commencement of this Bill.

19(5) No exclusionary provision of a contract, whether made before or after the enactment (commencement) of this Bill, shall be enforceable.

Section 20: Prohibition of certain provisions of contracts, etc., with respect to prices deemed to be in restraint of trade or substantially lessen competition

20 Without limitation to the generality of section 19 of this Bill, a provision of a contract, arrangement, or understanding shall be deemed for the purposes of that section to have the purpose, or to have or to be likely to have the effect, of restraining trade or substantially lessening competition in a market if the provision has the purpose, or has or is likely to have the effect of fixing, controlling, or maintaining, or providing for the fixing, controlling, or maintaining, of the price for goods or services, or any discount, allowance, rebate, subsidy or credit in relation to goods or services, that are:

(a) Supplied or acquired by the parties to the contract, arrangement, or understanding, or by any of them, or by any affiliated enterprise or body corporate, in competition with each other; or

(b) Re-supplied by persons to whom the goods are supplied by the parties to the contract, arrangement, or understanding, or by any of them, or by any affiliated enterprise or body corporate in competition with each other.

Section 21: Exemptions in respect of certain contracts

21 Nothing in this Part shall prohibit:

(a) A contract or an arrangement between partners none of whom is a body corporate in so far as it contains a provision in relation to the terms of the partnership or the conduct of the partnership business or in relation to competition between the partnership and a party to the contract, arrangement, or understanding while that party is, or after that party ceases to be, a partner;

(b) A contract or an arrangement where the only parties are or will be affiliated firms or enterprises;

(c) A contract of service or a contract for the provision of services in so far as it contains a provision by which a person, not being a body corporate, agrees to accept restrictions as to the work, whether as an employee or otherwise, in which that person may engage during, or after the termination of, the contract;

(d) A contract for the sale of a business or shares in the capital of a company carrying on a business in so far as it contains a provision that is solely for the protection of the purchaser in respect of the goodwill of the business;

(e) A contract or an arrangement in as much as it contains a provision that relates to the remuneration, conditions of employment, hours of work, or working conditions of employees;

(f) Any act done, otherwise than in trade, in concert by users of goods or services against the suppliers of those goods or services;

(g) Any act done to give effect to a provision of a contract or an arrangement referred to in paragraphs (a) to (f) of this section;

(i) Any act done to give effect to any intellectual property right, which shall mean a right, privilege, or entitlement, that is conferred or acknowledged as valid by or under:

(i) The Copyright Act CAP.68 LFN 1990

(ii) Patent and Designs Act CAP. 344 LFN 1990

(iii) Trademarks Act CAP.436 LFN 1990

Section 22: Exemptions in respect of transactions on assets of a business or shares of a company

22. Save as otherwise provided in Parts IV and V of this Bill, nothing in this Part shall apply to:

(a) A contract or an arrangement in as much as the contract or arrangement contains a provision for the acquisition or disposition of assets of a business or shares of a company; or

(a) Any act done to give effect to a provision of a contract, arrangement, or understanding that provides for the acquisition or disposition of assets of a business or shares.

Section 23: Exemptions in respect of pre-existing contracts

23(1) Nothing in this Bill shall affect the validity or enforcement of any contract, arrangement or understanding, executed, reached or arrived at before the commencement date of this Bill; Provided that the exemption granted by this section shall expire eighteen months after the said commencement date.

23(2) For the avoidance of doubt, nothing in this section shall be construed as extending the exemption to any contract, arrangement or understanding executed, reached or arrived at after the commencement of this Bill.

Section 24: Offences relating to Parts III

24(1) Any person who violates any provision of this Part shall be guilty of an offence and liable upon conviction, in the case of an individual, to imprisonment for one year or a fine of not less than N1,000,000.00 or to both such imprisonment and fine; and, in the case of an enterprise, to a fine not exceeding 20 per cent of average sales turnover of the enterprise for the three financial years immediately preceding the date of the commission of the offence.

24(2) Where an offence against any provision of this Bill has been committed by a body corporate or firm, any person who was a Director, Manager, Secretary or other similar officer of the body Corporate or firm purporting to act in such capacity shall, in addition to the body corporate or firm, be deemed to be guilty of that offence unless he proves that the offence was committed without his consent or connivance and that he exercised all such diligence to prevent the commission of the offence as he ought to have exercised having regard to the nature of his functions in that capacity and to all the circumstances.

PART IV -- ABUSE OF DOMINANT POSITION OR MARKET POWER

Section 25: Abuse of Dominant position in a market prohibited

25(1) Save as otherwise provided in this Bill, no person in a dominant position in a market shall abuse that position.

25(2) For the purpose of subsection (1) of this section, any of the following acts or practices, if undertaken by a person who has a dominant position in a market, constitutes an abuse of dominant position in respect of the relevant market:

(a) Restricting the entry of any person into that market;

(b) Restricting the entry of any person in competition with the dominant firm into any other market;

(d) Eliminating any person from that market.

Section 26: Resale price maintenance Prohibited

26(1) No person shall engage in the practice of resale price maintenance.

26(2) For the purposes of this section a person (in this section referred to as the “Supplier”) engages in the practice of resale price maintenance if that person, by himself or through a third party, does any of the following acts:

(a) The supplier makes it known to another person, directly or by reasonable implication, that the supplier will not supply goods to the other person unless the other person agrees not to sell those goods at a price less than that specified by the supplier; or

(b) The supplier withholds the supply of goods to another person for the reason that the other person has sold, or is likely to sell, goods supplied to him by the supplier, or goods supplied to him by a third person who, directly or indirectly, has obtained the goods from the supplier, at a price less than the minimum price specified by the supplier.

26(3) For the purpose of this section, a supplier of any goods, by himself or a third party, is not to be taken as inducing, or attempting to induce, another person not to sell those goods at a price less than a price specified by the supplier merely because a statement of a price is applied or used in relation to the goods or is applied to a covering, label, reel, or thing and there is no obligation on the part of the recipient of the goods to comply with the recommendation or suggestion of price.

Section 27: Prohibition Against Withholding or preventing the supply of goods

27(1). No supplier of good shall withhold or prevent the supply of goods to another person if the purpose or effect of such withholding or prevention is a lessening of competition in a market.

27(2). For the purpose of this section, the supplier shall be deemed to withhold or prevent the supply of goods to another person if:

(a) The supplier refuses or fails to supply those goods to, or as requested by, the other person; or

(b) The supplier refuses to supply those goods except on terms that are disadvantageous to the other person; or

(c) In supplying those goods to the other person, the supplier treats that person less favourably, whether in respect of time, method, or place of delivery, or otherwise, than the supplier treats other persons to whom the supplier supplies the same or similar goods; or

(d) The supplier causes or procures a person to act in relation to the supply of goods in the manner specified in paragraphs (a), (b), or (c), as the case may be, of this section.

27(3) Nothing in this Part of this Bill shall apply in respect of any act, matter, or thing that is, or is of a kind, specifically authorised by any law.

27(4) For the purposes of Part IV of this Bill, a dominant position in a market is one in which a person as a producer, supplier or seller of goods or services either alone or together with any interconnected body corporate is in a position to exercise a dominant influence over the production, acquisition, supply, or price of goods or services in that market and for the purposes of determining whether a person is in a position to exercise a dominant influence over the production, acquisition, supply, or price of goods or services in a market regard shall be had to:

(a) The share of the market, the technical knowledge, the access to materials or Capital of that person or that person together with any interconnected body corporate;

(b) The extent to which that person is constrained by the conduct of competitors or potential competitors in that market;

Section 28: Offences relating to Parts IV

28(1) Any person who violates any provision of Part IV of this Bill shall be guilty of an offence and liable upon conviction, in the case of an individual, to imprisonment for two years or a fine of N2,000,000, or to both such imprisonment and fine; and, in the case of an enterprise, to a fine not exceeding twenty per cent of the average sales turnover of the enterprise for the three financial years immediately preceding the date of the commission of the offence.

28(2) Where an offence against any provision of this Bill has been committed by a body corporate or firm, any person who was a Director, Manager, Secretary or other similar officer of the body Corporate or firm purporting to act in such capacity shall, in addition to the body corporate or firm, be deemed to be guilty of that offence unless he proves that the offence was committed without his consent or connivance and that he exercised all such diligence to prevent the commission of the offence as he ought to have exercised having regard to the nature of his functions in that capacity and to all the circumstances.

PART V – MERGERS, TAKEOVERS AND ACQUISITIONS

Section 29: Prohibition of certain mergers, takeovers and acquisitions

29(1) No person shall acquire assets of a business or shares of a company or any of a company’s undertakings if, as a result of the acquisition:

(a) That person, or another person associated or affiliated with that person, will likely be in a dominant position in a market; or

(b) That person's or an associated person's dominant position in a market will likely be strengthened.

29(2) For the purpose of this section, where two or more persons are affiliated or associated and jointly are in a dominant position in a market, each of them is deemed to be in a dominant position in that market.

29(3) For the purpose of this section, a person is associated or affiliated with another person if that person is able, whether directly or indirectly, to exert a substantial degree of influence over the activities of the other and vice versa.

29(4) For the purpose of the provisions of this Bill relating to mergers, takeovers and acquisition, a person has, or two or more affiliated or associated persons have, as the case may be, a dominant position in a market if that person as a producer, supplier or a seller, or those persons as producers or suppliers or sellers, of goods or services, is or are in a position to exercise a dominant influence over the production, acquisition, supply, or price of goods or services in that market and for the purpose of determining whether a person is, or two or more affiliated or associated persons are in a position to exercise a dominant influence over the production, acquisition, supply, or price of goods or services in a market regard shall be had to:

(a) The share of the market, the technical knowledge, the access to materials or capital of that person or those persons;

(b) The extent to which that person is, or those persons are, constrained by the conduct of competitors or potential competitors in that market; and

(c) The extent to which that person is, or those persons are, constrained by the conduct of producers, suppliers or sellers of goods or services in that market.

Section 30: Offences relating to Part V

30(1) Any person who violates any provision this Part of this Bill shall be guilty of an offence and liable upon conviction, in the case of an individual, to imprisonment for three years or a fine of N3,000,000, or to both such imprisonment and fine; and, in the case of an enterprise, to a fine not exceeding twenty per cent of the average sales turnover of the enterprise for the three financial years immediately preceding the date of the commission of the offence.

30(2) Where an offence against any provision of this Bill has been committed by a body corporate or firm, any person who was a Director, Manager, Secretary or other similar officer of the body Corporate or firm purporting to act in such capacity shall, in addition to the body corporate or firm, be deemed to be guilty of that offence unless he proves that the offence was committed without his consent or connivance and that he exercised all such diligence to prevent the commission of the offence as he ought to have exercised having regard to the nature of his functions in that capacity and to all the circumstances.

Section 31: Control of mergers, takeovers and acquisitions

31(1) Subject to Part V of this Bill, the Commission may, from time to time, establish a guideline under which mergers, takeovers and acquisitions shall be controlled in accordance with this Bill.

31(2) The Commission shall not establish a guideline under subsection (1) of this section unless the Commission is satisfied that such guideline is necessary and desirable for ensuring that any merger or acquisition to which it pertains does not lessen competition or otherwise tend to create a monopoly in the market.

31(3) Any guideline made under this section shall identify the circumstances and conditions of mergers, takeovers and acquisitions to which it pertains, and the procedures to govern the approval by the Commission of such merger, takeover or acquisition.

Section 32: The Commission may report to the President as to control of mergers, takeovers and acquisitions

32(1) The President may, by notice in writing to the Commission, require it to report to him, by such date as the President shall specify in the said writing, on circumstances and conditions of mergers, takeovers and acquisitions to which the notice pertains, and the procedures to govern the approval by the Commission of such merger, takeovers and acquisition.

32(2) Where the Commission has provided a report to the President pursuant to subsection (1) of this section, the President shall cause such report to be published, in the Gazette and in such other manner as the President may consider appropriate.

Section 33: Mere transfer of market dominance excluded

33. Nothing in section 29 and section 31 of this Bill shall apply to the acquisition of assets of a business or shares of a company if:

(a) Before the acquisition, either the person acquiring the assets or shares, or the business the assets of which are acquired or the company in which the shares are acquired, as the case may be, already had a dominant position in a market; and

(b) The acquisition has not resulted or will not result in the strengthening of that dominant position.

PART VI - REGULATION OF PRICES

Section 34: Declaration of price regulation

34(1) For the purpose of regulating and facilitating competition only, the President may, from time to time, by order published in a Gazette, declare that the prices for goods or services specified in the order shall be controlled in accordance with this Bill.

34(2) The President shall not make an order under subsection (1) of this section unless the President is satisfied that:

(a) Goods or services to which the order relates are or will be supplied or acquired in a market in which competition is limited or is likely to be lessened;

(b) It is necessary or desirable for the prices of those goods or services to be controlled in accordance with this Bill in the interest of users, consumers, or, as the case may be, suppliers; and

(c) Any such declaration of price regulation is narrowly designed both in terms of duration and the list of goods and services affected, as is necessary to remedy the effects of the absence of competition in the market affected.

34(3) Any order made under this section shall identify the goods or services to which it pertains, as follows:

(a) By a description of the goods or services;

(b) By a description of the kind or class to which the goods or services belong;

(d) By a specification of the sector of the economy affected or likely to be affected;

34(4) An order made under this section may apply to goods and, with all necessary modifications, to services.

34(5) Every order made under this section shall specify the date on which it shall expire.

Section 35: The Commission to report to the President as to price regulation

35(1) The President may, by notice in writing to the Commission, require it to report to him, by such date as the President shall specify in the said writing, on whether he should make, amend, vary or revoke an order under section 34 of this Bill.

35(2) Where the President requires the Commission to report to him under subsection (1) of this section:

(a) The Commission shall cause to be published, in the Gazette and in such other manner, including the mass media, as the Commission may consider appropriate, a notice:

(i) Stating that the requirement has been made and specifying the matter to which it pertains; and

(ii) Inviting interested persons to present their views on that matter to the Commission, and specifying the time and manner within which they may do so.

(b) The Commission shall not submit a report to the President until it has given a reasonable opportunity to interested persons to furnish their views in accordance with paragraph (a)(ii) of this subsection.

35(3) The Commission may, of its own motion, recommend to the President that he make, amend, vary or revoke an order under Section 34 of this Bill.

35(4) The President shall cause a copy of every report submitted to him by the Commission under this section to be published in such manner as he may consider appropriate.

Section 36: Regulated goods or services not to be supplied except in accordance with authorised price

36(1) For the purpose of this section, “Regulated goods or services”, means goods or services in respect of which there is for the time being in force an order made under Section 34 of this Bill;

36(2) No person shall supply any regulated goods or services unless a price for those goods or services has been authorised by the Commission or an undertaking has been given in relation to those goods or services in accordance with the provisions of this Bill, and the goods or services are supplied in compliance with all the provisions of the authorisation or undertaking.

36(3) No provision of a contract in violation of subsection (2) of this section is enforceable.

36(4) Any person who violates any provision of this Part shall be guilty of an offence and liable upon conviction, in the case of an individual, to imprisonment for one year or a fine of N1,000,000, or to both such imprisonment and fine; and, in the case of an enterprise, to a fine not exceeding twenty per cent of the average sales turnover of the enterprise for the three financial years immediately preceding the date of the commission of the offence.

36(5) Where an offence against any provision of this Bill has been committed by a body corporate or firm, any person who was a Director, Manager, Secretary or other similar officer of the body Corporate or firm purporting to act in such capacity shall, in addition to the body corporate or firm, be deemed to be guilty of that offence unless he proves that the offence was committed without his consent or connivance and that he exercised all such diligence to prevent the commission of the offence as he ought to have exercised having regard to the nature of his functions in that capacity and to all the circumstances.

Section 37: Records to be kept for pricing purposes

37(1) Every supplier of regulated goods or services shall retain such accounts and costing records in relation to the regulated goods or services as the Commission may from time to time specify either in relation to suppliers of those goods or services generally or in relation to a particular supplier of the goods or services.

37(2) Every supplier of regulated goods or services shall retain the accounts and records referred to in subsection (1) of this section for a period of three years from the date of the revocation or expiry of the order in respect of the regulated goods or services to which they relate.

PART VII - AUTHORISATIONS AND CLEARANCES

Section 38: Authorisation with respect to contracts, arrangements and restrictive practices substantially lessening competition

38(1) A person who wishes to enter into a contract or an arrangement or to give effect to a contract or arrangement, to which section 18 of this Bill may pertain, may apply to the Commission for an authorisation to do so and the Commission may grant an authorisation for that person to enter into, or give effect to, the contract or arrangement.

38(2) A person who wishes to engage in the practice of resale price maintenance to which section 26 of this Bill may pertain; or to perform an act to which section 29 of this Bill may pertain, may apply to the Commission for an authorisation to do so, and the Commission may grant an authorisation for that person to engage in the practice or to perform the act.

38(3) The Commission shall not grant an authorisation under this section unless it is satisfied that the contract, arrangement or practice will result in such a benefit to the public that it should be permitted and the Commission shall grant an authorisation pursuant to this section in writing and shall therein disclose the public benefit which was determined to result from such contract, arrangement or practice.

Section 39: Effect of Authorisation

39(1) While an authorisation under section 38 of this Bill is in force, the person to whom it was given may, notwithstanding any provision of Part III of this Bill, proceed with the act with respect to which the authorisation was given.

39(2) Every authorisation granted by the Commission to a person under section 38 of this Bill shall have effect as if it were also an authorisation in the same terms to every other person named or referred to in the application for the authorisation as a party to the contract, arrangement, or understanding, or the practice or act, as the case may be.

Section 40: Authorisation not to be granted in relation to contracts, etc. made before determination by the Commission

40(1) The Commission shall not grant an authorisation to any person:

(a) To enter into a contract or arrangement, or to arrive at an understanding if the contract or arrangement has been entered into, or the understanding has been arrived at before the Commission makes a determination in respect of the application for that authorisation; or

(b) To perform any act or engage in any conduct governed by this Bill if the applicant has done the act or engaged in the conduct, before the Commission makes a determination in respect of the application for that authorisation.

40(2) Nothing in this section shall prevent the Commission from granting an authorisation to any person to give effect to a provision of a contract or arrangement entered into, or understanding arrived at, before the commencement of this Bill.

Section 41: Procedure for application for Authorisation of contracts, arrangements and restrictive practices substantially lessening competition

41(1) Every application for an authorisation under section 38 of this Bill shall be made in the prescribed form, shall contain such particulars as may be specified in the form and shall be accompanied by payment of such fee as may be prescribed.

41(2) On receipt of an application that complies with subsection (1) of this section, the Commission shall:

(a) Record the application in the register to be kept by the Commission for that purpose;

(b) Give written notice of the date of registration to the person by whom or on whose behalf the application was made;

(c) Give notice of the application to any other person who, in the Commission's opinion, is likely to have an interest in the application; and

(d) Give public notice of the application in such manner as the Commission may think fit.

41(3) Any person who has an interest in any application in respect of which a notice is given under subsection (2) (d) of this section may give written notice to the Commission of that person's interest and the reason therefor.

41(4) On receipt of an application that does not comply with subsection (1) of this section, the Commission may, at its discretion, either:

(a) Accept the application and take the steps referred to in subsection (2) of this section in respect of that application; or

(b) Return the application to the person by whom or on whose behalf it was made; or

41(5) Where the Commission declines to register an application under subsection (4) (c) of this section, it shall forthwith notify the person by whom or on whose behalf the application was made.

41(6) The person making the application under subsection (1) of this section, and any person on whose behalf it was made, and any person to whom the application relates, shall from time to time produce, or, as the case may be, furnish to the Commission, within such time as it may specify, such further documents or information in relation to the application as may be required by the Commission for the purpose of enabling it to exercise its functions under this Part of this Bill.

41(7) Notwithstanding anything in subsection (2) or subsection (4) of this section, where the Commission is of the opinion that the matters to which an application relates are, for reasons other than arising from the application of any provision of this Bill, unlikely to be proceeded with, the Commission may, in its discretion, return the application to the person by or on whose behalf the application was made; Provided that the person by or on whose behalf the application was made shall have the right the right to apply to the Court for a review of such determination.

41(8) Any person who has made an application to the Commission for an authorisation may, at any time, by notice in writing to the Commission, withdraw the application.

Section 42: Determination of applications for authorisation of contracts, arrangements and restrictive practices substantially lessening competition

42(1) The Commission shall, in respect of an application for an authorisation under section 38 of this Bill, make a determination in writing:

(a) Granting such authorisation as it considers appropriate; or

(b) Denying the application.

42(2) Any authorisation granted pursuant to section 38 of this Bill may be granted subject to such conditions not inconsistent with this Bill and for such period as the Commission may think fit.

42(3) In deciding whether to grant or deny an application, the Commission shall take into account any submissions in relation to the application made to it by the applicant or by any other person.

42(4) The Commission shall state in writing its reasons for a determination made by it.

42(5) Before making a determination in respect of an application for an authorisation, the Commission shall comply with the requirements of section 41 of this Bill.

42(6) The Commission shall not make a determination granting an authorisation pursuant to an application under section 38(2) to (4) of this Bill unless it is satisfied that the contract or arrangement or the enforcement thereof, as the case may be, to which the application relates, will in all the circumstances result in a benefit to the public which would outweigh the lessening in competition that will result therefrom.

Section 43: The Commission to prepare proposed determination in relation to contracts, arrangements and restrictive practices substantially lessening competition.

43(1) Before deciding an application for an authorisation under section 38 of this Bill, the Commission shall prepare a proposed determination in relation to the application.

43(2) The Commission shall send a copy of the proposed determination and a summary of the reasons therefor to:

(a) The applicant;

(b) Any person to whom a notice has been given pursuant to section 41 (2) (c) of this Bill;

(c) Any person who has given a notice pursuant to section 41(3) of this Bill and who in the opinion of the Commission has such an interest in the application as to justify the Commission sending a copy of the proposed determination to that person; and

(d) Any other person who in the opinion of the Commission may assist the Commission in its determination of the application.

43(3) The applicant and each other person to whom a copy of the proposed determination is sent shall notify the Commission within fourteen days after a date fixed by the Commission (not being a date earlier than the day on which the notice is sent) whether the applicant or other person wishes the Commission to hold a conference in relation to the proposed determination.

43(4) If every person to whom a proposed determination was sent under subsection (2) of this section:

(a) Notifies the Commission within the period of fourteen days prescribed in subsection (3) of this section that such person does not wish the Commission to hold a conference in relation to the proposed determination; or

(b) Does not notify the Commission within that period that such person wishes the Commission to hold such a conference

the Commission may make a final determination at any time after the expiration of that period.

43(5) If any person to whom a proposed determination was sent under subsection (2) of this section notifies the Commission, in writing, within the period of fourteen days prescribed in subsection (3) of this section that he wishes the Commission to hold a conference in relation to the proposed determination, the Commission shall appoint a date (not being a date later than twenty-one days after the expiration of that period), time, and place for the holding of the conference and give notice of the date, time, and place so appointed to each person to whom a proposed determination was sent under subsection (2) of this section.

43(6) The Commission may, of its own motion, determine to hold a conference in relation to the proposed determination and shall appoint a date (not being a date later than twenty-one days after the expiration of the period referred to in subsection (3) of this section), time, and place for the holding of the conference and give notice of the date, time, and place so appointed to the person to whom the proposed determination was sent under subsection (2) of this section.

43(7) Where the Commission is of the opinion that two or more applications for authorisations that are made by the same person, or by bodies corporate that are affiliated with each other, involve the same or substantially similar issues, the Commission may consolidate the applications and treat same as if they constitute a single application, and may prepare a single proposed determination in relation to the applications and hold a single conference in relation to that proposed determination.

Section 44: Procedure for holding a conference

44(1) At every conference called under section 43 of this Bill:

(a) The Commission shall be represented by the Executive Chairman or a member or members thereof nominated by the Executive Chairman;

(b) Each person to whom a proposed determination was sent under section 43(2) of this Bill, and any other person whose presence at the conference is considered by the Commission to be desirable, is entitled to attend and participate personally or, in the case of a company or a firm, be represented by a person who, or by persons each of whom, is a director, officer, or employee of the company or firm;

(c) A person participating in the conference in accordance with paragraph (b) of this subsection is entitled to have another person, who may be a legal practitioner, or other persons present to assist him;

(d) No other person is entitled to be present.

44(2) The Commission may require any officer or officers of the Commission to attend a conference called under section 43 of this Bill where in the opinion of the Commission that officer or those officers may assist the Commission in the determination of the application. The member of the Commission or the officer (or one of the officers) of the Commission, as the case may be, in attendance, shall preside over the conference.

44(3) At every conference called under section 43 of this Bill the Commission shall provide for as little formality and technicality as the requirements of this Bill and a proper consideration of the application may permit.

44(4) The Commission shall cause such record of the conference to be made