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Investigative Powers of the Federal Competition and Consumer Protection Commission (“FCCPC”)

posted 2 years ago

One of the objectives of the Federal Competition and Consumer Protection Act (“the Act”) is to ‘prohibit restrictive or unfair business practices which prevent, restrict or distort competition or constitute an abuse of a dominant position of market power in Nigeria.’ In order for it to fulfil this duty, the Act empowers the FCCPC through section 17(e) of the Act, to conduct ‘investigations or inquiries considered necessary or desirable’ within any matter falling under the purview of the Act. Investigations, search and seizure operations and market inquiries are popular tools used by competition agencies in their competition law enforcement regimes.

While market inquiries are generally used by competition agencies worldwide to assess the general state of competition in a specific market as well as any factors or behaviour by market players which have anti-competitive effects on the market, investigations may also be conducted for purposes of gathering of evidence or assessing anti-competitive behaivour by market players. The investigative powers given to competition agencies to conduct market inquiries are typically wide and far-reaching, empowering agencies to make findings and recommendations against market players.

The FCCPC has adopted practices akin to those of many well-established competition agencies in conducting investigations, search and seizure operations as well as market inquiries. When it conducts investigations and/or inquiries, the FCCPC maintains the ability to summon and examine witnesses as well as to call for and examine documents it considers relevant to the investigation. In addition, where it obtains a warrant, the FCCPC is entitled to search the premises of a market player and inspect and remove any documentation from such premises if the FCCPC believes it is related to conduct which contravenes the Act. Importantly, investigations and market inquiries may be commenced upon the FCCPC’s own volition or, alternatively, upon complaints lodged by consumers; industry sector regulators; or consumer protection groups.

It is essential that market players understand the gravity of the FCCPC’s investigative powers and the implications of non-compliance with its procedures. The Act specifically prescribes that it is an offence for any individual to obstruct or impede any investigation by the FCCPC. Such an offence would render the party liable, upon conviction, to either imprisonment for up to two years or a fine up to N5 000 000, or both imprisonment and a fine. Furthermore, where information requested by the FCCPC is not provided to its satisfaction, it is entitled to make findings on the basis of any information before it. As such, the importance of cooperation with the FCCPC is essential in order to prevent it from making false/incomplete findings.

The Investigative Cooperation/Assistance Rules & Procedures published by the FCCPC in 2021 (“the Rules”) provide a means by which market players are able to cooperate and assist the FCCPC in its investigations in order to receive immunity, waiver of prosecution or reduced penalties under the Act. These benefits will be afforded to parties who ‘fully cooperate and or assist the FCCPC’s investigations.’ Furthermore, immunity and a reduction of an administrative penalty remain within the FCCPC’s discretion and are assessed according to mitigating and aggravating factors. In this regard, the FCCPC will consider the following:

            “(i) timing and stage at which the Candidate enters into cooperation/assistance;

            (ii) extent and value of the cooperation/assistance;

(iii) the procedural and administrative efficiencies gained by the Commission in the investigation; and

            (iv) the entire facts and circumstances of the case.

In order to benefit from the Rules, a firm involved in anti-competitive conduct should accept its liability and admit guilt; make full disclosure of the conduct; cease the anti-competitive conduct; provide full and continuous cooperation with the FCCPC; and endeavor not to interfere with evidence which may be sought in the FCCPC’s investigation.


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