The International Comparative Legal Guide to:

Cartels & Leniency 2015

8th Edition
A practical cross-border insight into cartels and leniency

Published by Global Legal Group, in association with CDR, with contributions from:
Advokatfirmaet Wiersholm AS
Affleck Greene McMurtry LLP
Allende & Brea
Attorneys at law Borenius Ltd
B. Golan Law Firm
Bloomfield Advocates & Solicitors
Crowell & Moring
Debarliev, Dameski & Kelesoska, Attorneys at Law
DLA Piper Nederland N.V.
Drew & Napier LLC
ELIG, Attorneys-At-Law
Gjika & Associates Attorneys at Law
INFRALEX
Keane Vgenopoulou & Associates LLC
Khaitan & Co

King & Wood Mallesons LLP

KLEYR GRASSO
Koutalidis Law Firm
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Nagashima Ohno & Tsunematsu
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Sysouev, Bondar, Khrapoutski
Szecskay Attorneys at Law
Wilmer Cutler Pickering Hale & Dorr LLP
Yoon & Yang LLC

The International Comparative Legal Guide to: Cartels & Leniency 2015
General Chapters:
1
2
Contributing Editors
Simon Holmes and Philipp
Girardet, King & Wood
Mallesons LLP
Head of Business
Development
Dror Levy

Cartels: Balancing the Risk of Fines Against the Increasing Risk of Private Actions
in Europe Sarah Turnbull & Victoria Keenan, King & Wood Mallesons LLP

Rights and Obligations Under the EU Directive on Antitrust Damages Actions Ingrid
Vandenborre & Thorsten C. Goetz, Skadden, Arps, Slate, Meagher & Flom LLP

Private Antitrust Litigation in the EU: A New Age of Advocacy James Keyte &
Paul Eckles, Skadden, Arps, Slate, Meagher & Flom LLP

11

Country Question and Answer Chapters:

4

Albania

Gjika & Associates Attorneys at Law: Oltion Toro & Silvi Tola

16

Argentina

Allende & Brea: Julin Pea

22

Senior Account Managers

Maria Lopez, Oliver Smith,
Rory Smith

Australia

King & Wood Mallesons: Sharon Henrick & Wayne Leach

28

Austria

Preslmayr Rechtsanwlte OG: Dieter Hauck & Esther Sowka-Hold

36

Sales Support Manager

Toni Wyatt

Belarus

Sysouev, Bondar, Khrapoutski: Alexander Bondar & Karyna Loban

44

Belgium

Crowell & Moring: Thomas De Meese

50

10 Canada

Affleck Greene McMurtry LLP: W. Michael G. Osborne & Michael Binetti

56

11 China

King & Wood Mallesons: Susan Ning & Hazel Yin

63

12 Cyprus

Keane Vgenopoulou & Associates LLC: Thomas Keane &

Christina Vgenopoulou

73

Account Directors
Antony Dine, Florjan Osmani

Editor
Gemma Bridge
Senior Editor
Suzie Levy
Group Consulting Editor
Alan Falach
Group Publisher
Richard Firth

13 European Union King & Wood Mallesons LLP: Elaine Gibson-Bolton & Simon Holmes

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80

Attorneys at law Borenius Ltd: Ilkka Aalto-Setl &

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15 France

King & Wood Mallesons LLP: Natasha Tardif & Delphine Cohen-Hadjian

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25 Netherlands

DLA Piper Nederland N.V.: Martijn van Wanroij & Sophie Gilliam

171

26 Nigeria

Bloomfield Advocates & Solicitors: Busayo Adedeji & Bode Adegoke

178

27 Norway

Advokatfirmaet Wiersholm AS: Anders Ryssdal &

Monica Hilseth-Hartwig

183

28 Portugal

Morais Leito, Galvo Teles, Soares da Silva & Associados,

Sociedade de Advogados, R.L.: Ins Gouveia &
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200

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The International Comparative Legal Guide to: Cartels & Leniency 2015
30 Russia

INFRALEX: Artur Rokhlin & Olesya Bogun

31 Singapore

Drew & Napier LLC: Lim Chong Kin & Scott Clements

32 Slovenia

Odvetniki elih & partnerji, o.p., d.o.o.: Nataa Pipan Nahtigal &
Tjaa Lahovnik

King & Wood Mallesons LLP: Ramn Garca-Gallardo &

Manuel Bermdez Caballero

34 Switzerland

Schellenberg Wittmer Ltd: David Mamane & Dr. Jrg Borer

35 Turkey

ELIG, Attorneys-At-Law: Gnen Grkaynak & znur nanlr

33 Spain

36 United Kingdom King & Wood Mallesons LLP: Simon Holmes & Philipp Girardet

37 USA

Wilmer Cutler Pickering Hale & Dorr LLP: Steven F. Cherry

EDITORIAL
Welcome to the eighth edition of The International Comparative Legal Guide
to: Cartels & Leniency.
This guide provides corporate counsel and international practitioners with a
comprehensive worldwide legal analysis of the laws and regulations of cartels
and leniency.
It is divided into two main sections:
Three general chapters. These chapters are designed to provide readers with a
comprehensive overview of key cartels and leniency issues, particularly from
the perspective of a European transaction.
Country question and answer chapters. These provide a broad overview of
common issues in cartels and leniency laws and regulations in 34 jurisdictions.
All chapters are written by leading competition lawyers and industry
specialists and we are extremely grateful for their excellent contributions.
We are also pleased to once again include a Wall Chart, which contains a
summary table of key features relating to cartels and leniency laws and
regulations in each of the 34 jurisdictions.
Special thanks are reserved for the contributing editors Simon Holmes and
Philipp Girardet of King & Wood Mallesons LLP for their invaluable
assistance.
Global Legal Group hopes that you find this guide practical and interesting.
The International Comparative Legal Guide series is also available online at
www.iclg.co.uk.
Alan Falach LL.M.
Group Consulting Editor
Global Legal Group
Alan.Falach@glgroup.co.uk

Chapter 26

Nigeria

Busayo Adedeji

Bloomfield Advocates & Solicitors

1 The Legislative Framework of the Cartel

Prohibition
1.1

What is the legal basis and general nature of the cartel

prohibition e.g. is it civil and/or criminal?

There are no general anti-cartel or anti-competition legislations;

however the provisions of various regulatory laws relating to anticompetition activities in various sectors of the economy are mostly
civil in nature.
1.2

What are the specific substantive provisions for the cartel

prohibition?

There are no general substantive laws in practice regulating

cartels; in most sectors of the economy, there are sector-specific
laws and bodies responsible for enforcement of various
applicable laws.
The only enactment that cuts across all sectors of the economy in
Nigeria as far as competition law is concerned is the Investment and
Securities Act (ISA). The Act regulates competition as it relates
to mergers and acquisition in all sectors of the economy. The ISA
also provides for the Security Exchange Commission (SEC) to
determine whether a merger will substantially lessen or prevent
competition.
In the communications sector, the Nigeria Communications Act
2003 (NCA) established the Nigerian Communications
Commission (NCC), which prohibits any operator in the sector
from engaging in any conduct which has the purpose or effect of
substantially lessening competition in any aspect of the Nigerian
Communications Market. The Act further provides that a
licensee (an operator) shall not enter into any understanding,
agreement or arrangement whether legally enforceable or not
which provides for: rate fixing, market sharing, boycott of
another competitor, boycott of a supplier of apparatus or
equipment or boycott or any other licensee.
In the aviation sector, the Nigerian Civil Aviation Authority Act
(NCAAA) establishes the Nigerian Civil Aviation Authority
(NCAA), which expressly prohibits any air carrier or travel
agent from engaging in unfair or deceptive practices or unfair
methods of competition in air transport or sale of tickets thereof.
In the banking sector, the Central Bank of Nigeria Act provides for
the Financial Services Regulation Co-coordinating committee, one
of the objectives of which is to co-ordinate the supervision of

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Bode Adegoke

financial institutions especially conglomerates. The Central Bank

of Nigeria (CBN) must authorise mergers and acquisitions in the
banking sector before they can come into force.
In the electricity sector, the Electric Power Sector Reform Act
(EPSRA) regulates competition and prohibits abuse of market
power amongst licensees operating in the sector and also establishes
the National Electric Regulatory Commission (NERC).
1.3

Who enforces the cartel prohibition?

The sector-specific bodies established by law are responsible for

enforcement; these bodies include: the Nigerian Communications
Commission, NCC; the Nigerian Civil Aviation Authority,
NCAA; the Central Bank of Nigeria, CBN; and the Nigerian
Electric Regulatory Commission, NERC.
1.4

What are the basic procedural steps between the opening

of an investigation and the imposition of sanctions?

The communications sector the NCC Act provides for the basic
procedure for investigations and appropriate sanctions.
A complainant that wants the Nigerian Communications
Commission (NCC) to investigate competition against a licensee
shall:
Submit a written request for an investigation to the NCC
and also a copy of the request to the other party. Note that
a request for an investigation shall contain the summary of
all relevant events or circumstances.
The responding party shall then, within 10 days of the
request, deliver to the commission its comments on the
investigation.
The NCC shall, within 30 days of the request, issue a
notice to the parties and then undertake a formal
investigation.
Furthermore, the commission may, at its own discretion, at any
time, decide to initiate a proceeding to determine:
whether conduct constitutes a substantial lessening of
competition; and/or
whether any conduct of a licensee is otherwise contrary to
these regulations.
Finally, the commission, on the completion of a proceeding, may:
Issue a direction requiring the responding party or any other
person to undertake specific actions or to cease specific
actions or resolve any conduct.

ICLG TO: CARTELS & LENIENCY 2015

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Bloomfield Advocates & Solicitors

Nigeria

Issue a direction and/or specific determinations relevant to

the proceeding.

Right to require an explanation of

documents or information supplied

Yes

Yes

Right to secure premises overnight

(e.g. by seal)

Yes

Yes

Other regulatory laws do not have provisions to initiate

proceedings.
1.5

Are there any sector-specific offences or exemptions?

The ISA exempts mergers below the threshold of N500,000,000

(US$3,000,000) from review by the Securities and Exchange
Commission.
Furthermore, the Securities and Exchange Commission would
generally refuse approval of a merger where it has been able to
determine that such a merger would substantially lessen
competition. However, if a proposed merger falls into the said
category, it may still be exempted and approved upon further
determination of factors such as:
Whether or not the merger would result in technical efficacy
or pro-competitive gain, which would out-weigh the effect of
lessened competition.
Whether the merger can or cannot be justified on substantial
public interest grounds.
A proposed merger which falls in line with the above factors
would be exempted and granted an approval in principle despite
the fact that it had initially been determined to significantly lessen
competition.
1.6

Is cartel conduct outside Nigeria covered by the

prohibition?

The various enactments prohibiting cartels and anti-competition

in Nigeria are against any cartel- or anti-competition-related
activities that may affect the Nigerian economy; consequently,
the laws will have an effect on conduct outside Nigeria in so far
as it may pose a negative effect on the economy of the country.

2 Investigative Powers
2.1

2.2

Please list specific or unusual features of the

investigatory powers referred to in the summary table.

The NCAA can direct any person who undertakes the business of
conveying passengers or cargo for reward to furnish it at any time
with information as the authority deems fit.
The NCC is empowered to appoint any of its officials or appoint
external inspectors to investigate or exercise any of its functions
and can do so without notice, provided the inspector has in his
possession a letter of authority from the commission. If the
premises to be searched, however, is that of a person who is not
a licensee of the commission, the inspector must obtain a warrant
from a magistrate court.
The ISA on its own part empowers the SEC to conduct
investigations as concerns its regulatory role over mergers. The
SEC is empowered to appoint inspectors to investigate mergers
and request information from parties to mergers as it deems fit.
In the process of discharging its regulatory responsibilities, the
NERC is empowered by the EPSRA to require information from all
licensees, undertake inquiries and establish or contract with an
independent entity to provide monitoring services.
2.3

Are there general surveillance powers (e.g. bugging)?

The laws are silent on general surveillance powers.

2.4

Are there any other significant powers of investigation?

There are none.

Summary of general investigatory powers.

Table of General Investigatory Powers

Investigatory power

Please Note: * indicates that the investigatory measure requires the

authorisation by a court or another body independent of the
competition authority.

Nigeria

Refer any outstanding matter to the federal high court.

2.5

Civil / administrative Criminal

Order the production of specific

documents or information

Yes*

Yes

Carry out compulsory interviews with

individuals

Yes

Yes

Carry out an unannounced search of

business premises

Yes

Yes*

Carry out an unannounced search of

residential premises

Yes*

Yes

Right to image computer hard drives

using forensic IT tools

No

No

Right to retain original documents

Yes

Who will carry out searches of business and/or residential

premises and will they wait for legal advisors to arrive?

The NCC has the power to appoint its officials or external

inspectors to conduct searches on its behalf, on the condition that
the inspector has with him a letter of authority and a search
warrant (from a magistrate) if the premises to be searched is that
of a non-licensee of the commission.
The other sector regulators are silent on searches and dawn raids.
2.6

Is in-house legal advice protected by the rules of

privilege?

The laws are silent as concerns privileges.

Yes

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Bloomfield Advocates & Solicitors

Nigeria

2.7

Please list other material limitations of the investigatory

powers to safeguard the rights of defence of companies
and/or individuals under investigation.

As it concerns the NCC, the commission shall not, as a result of any

investigation, make a finding that is adverse to any complainant or
respondent unless the commission has given such complainant or
respondent opportunity to make written submissions within a
period not less than 21 days.
2.8

Are there sanctions for the obstruction of investigations?

If so, have these ever been used? Has the authorities
approach to this changed, e.g. become stricter, recently?

The NCA provides for sanctions for any person who fails to
comply with directions for individuals. The sanction is the
payment of a fine of N100,000 or imprisonment for a term of one
year, or both.
The EPSRA prescribes a fine of N100,000 or imprisonment for a
period not exceeding one year, or both fine and imprisonment, for
any person who obstructs an inspector from performing his duties
under the Act.
The NCAAA also prescribes sanctions in terms of fines and
imprisonment for any person who fails to give information as
requested by the NCAA or any person who knowingly gives false
information.

Nigeria
country has no federal enactment on limitation periods. Different
states of the federation, however, have their respective limitation
laws; hence the applicable limitation laws will depend on the
state.
3.5

Can a company pay the legal costs and/or financial

penalties imposed on a former or current employee?

There are no provisions precluding a company from paying the

financial sanctions imposed on employees or former employees.
3.6

Can an implicated employee be held liable by his/her

employer for the legal costs and/or financial penalties
imposed on the employer?

The laws are silent on this.

4 Leniency for Companies

4.1

Is there a leniency programme for companies? If so,

please provide brief details.

There is no leniency programme.

4.2

Is there a marker system and, if so, what is required to

obtain a marker?

3 Sanctions on Companies and Individuals

There are no provisions for marker systems.
3.1

What are the sanctions for companies?

4.3

Where it determines that the business practices of a company

substantially prevent or lessen competition, the SEC may, in the
interest of the public, order the breakup of the company into
separate entities in such a way that its operations do not reduce
competition in its line of business.

Can applications be made orally (to minimise any

subsequent disclosure risks in the context of civil
damages follow-on litigation)?

Yes they can.

The NCC Act provides that any person who contravenes the
provisions of the Act as it relates to anti-competition will be liable
to such fines, sanctions or penalties as may be determined by the
commission from time to time.

4.4

The NERC is empowered by its establishing Act to issue cease

orders or levy fines not exceeding N50,000,000.

Confidentiality is employed on a case-by-case basis, as every

situation will depend on the discretion of the relevant regulatory
body concerned.

3.2

What are the sanctions for individuals?

There are no specific provisions on sanctions for individuals.

3.3

Can fines be reduced on the basis of financial hardship

or inability to pay grounds? If so, by how much?

There are no provisions with regards to the reduction of fines on the

basis of financial hardship or the inability to pay. Fines may,
however, be varied by the courts.
3.4

To what extent will a leniency application be treated

confidentially and for how long? To what extent will
documents provided by leniency applicants be disclosed
to private litigants?

4.5

At what point does the continuous cooperation

requirement cease to apply?

The relevant regulatory body decides if there will be any continuous

cooperation and at what point it will cease.
4.6

Is there a leniency plus or penalty plus policy?

There are no provisions for a leniency plus or penalty plus policy.

What are the applicable limitation periods?

None of the cartel- and anti-competition-related laws in Nigeria

have provisions relating to limitation periods. Nigeria as a

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Bloomfield Advocates & Solicitors

5.1

Are there procedures for individuals to report cartel

conduct independently of their employer? If so, please
specify.

There are no provisions for individuals to report cartel activities

independently of their employers in any of the sectors. The Public
Complaints Commission, however, has the power to investigate
either on its own initiative or following complaints lodged before
it by any person in either the public or private sectors of the
economy.

8.2

Do your procedural rules allow for class-action or

representative claims?

The procedural rules allow for representative actions, but there are
no provisions for class actions; as such Nigeria is yet to have its first
class action matter.
8.3

What are the applicable limitation periods?

The limitation period is as stated in question 3.4 above.

8.4

Nigeria

5 Whistle-blowing Procedures for Individuals

Nigeria

Does the law recognise a passing on defence in civil

damages claims?

6 Plea Bargaining Arrangements

Existing legislation is yet to incorporate the defence of passing on.
6.1

Are there any early resolution, settlement or plea

bargaining procedures (other than leniency)? Has the
competition authorities approach to settlements changed
in recent years?

None of the regulatory laws have provisions relating to plea

bargaining and to date there have been no cases of plea bargaining
in any cartel- or anti-competition-related cases.

8.5

There are no provisions for civil damages follow-on claims in cartel

cases in any of the legislation.
8.6

7 Appeal Process
7.1

What is the appeal process?

There are no special provisions regarding appeals. But as is the

case with the principles of justice, a company that feels aggrieved
by the sanctions imposed by any of the regulatory bodies can
exercise the right to approach the appropriate court for redress.
7.2

Does an appeal suspend a companys requirement to pay

the fine?

Yes it does.
7.3

Does the appeal process allow for the cross-examination

of witnesses?

What are the cost rules for civil damages follow-on claims
in cartel cases?

Have there been any successful follow-on or stand alone

civil damages claims for cartel conduct? If there have not
been many cases decided in court, have there been any
substantial out of court settlements?

There has not been any successful follow-on or stand alone civil
damages claims for cartel conduct, neither have there been any
reported out of court settlements.

9 Miscellaneous
9.1

Please provide brief details of significant recent or

imminent statutory or other developments in the field of
cartels, leniency and/or cartel damages claims.

By virtue of the provisions of the Amended 1999 Constitution of

Nigeria, the National Assembly can legislate on matters bordering
on cartels and competition. Presently there are a number of bills
before the legislature directed at cartels and anti-competition
activities.

Yes it does.
9.2

8 Damages Actions
8.1

What are the procedures for civil damages actions for

loss suffered as a result of cartel conduct? Is the position
different (e.g. easier) for follow on actions as opposed to
stand alone actions?

Please mention any other issues of particular interest in

Nigeria not covered by the above.

There are none.

There are no specific provisions with regards to civil damages

actions for loss suffered as a result of cartel or anti-competition
activities.

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181

Nigeria

Bloomfield Advocates & Solicitors

Nigeria

Busayo Adedeji

Bode Adegoke

Bloomfield Advocates & Solicitors

2nd floor, 200 Muritala Mohammed Way
Yaba, Lagos
Nigeria

Bloomfield Advocates & Solicitors

2nd floor, 200 Muritala Mohammed Way
Yaba, Lagos
Nigeria

Tel:
Fax:
Email:
URL:

Tel:
Fax:
Email:
URL:

+234 1738 8369

+234 1496 0466
busayo.adedeji@bloomfield-law.com
www.bloomfield-law.com

Busayo is an Associate at Bloomfield Advocates & Solicitors. His

practice areas include corporate immigration law, commercial
litigation, and employment law, etc.
He represents corporate clients on issues bordering on
corporate immigration and employment law as well as
commercial disputes, etc.
He holds a law degree from the Olabisi Onabanjo University and
is a member of the Nigerian Bar Association.

+234 1738 8369

+234 1496 0466
bode.adegoke@bloomfield-law.com
www.bloomfield-law.com

Bode is an Associate at Bloomfield Advocates & Solicitors. He is

a vibrant lawyer with experience in commercial litigation and has
been involved in several important litigation and alternate dispute
resolution matters.
He now practises primarily in the areas of commercial and
criminal litigation, and has advised several companies on various
aspects of law in Nigeria.
He is a member of the Nigerian Bar Association and holds a law
degree from the University of Ibadan.

Bloomfield is the foremost full-service law firm in Nigeria. The firm provides regulatory compliance advisory services to both local
and multinational companies in Nigeria. Our Partners, Associates and Support Staff provide professional service of the highest
standard to our clients by combining awareness of clients needs with a practical and constructive approach to legal issues.
The firm has been involved in providing regulatory compliance training programmes to employees of various companies and
ensuring compliance with international and local regulatory provisions.

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