Competition
The Administrative Council for Economic Defense (Cade) has reviewed about 40 merger filings involving the so called associative agreements since Resolution No. 17/2016 entered into force on November 25, 2016. These filings refer to agreements between companies from the most varied of industries (such as food and beverage, cement, pharmaceuticals, shipping, and telecommunications) and with different subject matter (distribution, supply, infrastructure operation, commercial partnerships, co-development, and joint marketing, among others). Despite these precedents, in practice there is still much uncertainty regarding the configuration of associative agreements.
The Administrative Council for Economic Defense (Cade) has established new rules on the process in administrative proceedings for assessing merger acts (Apac), through which the agency investigates and punishes the early consummation of these acts, also known as gun jumping, and defined parameters for calculating the applicable fine. The changes were published in Resolution No. 24/19.
For 25 years, the Administrative Council for Economic Defense (Cade) was a great unknown among the population. This was due, in large part, to the market environment in Brazil, characterized by a history of state intervention and the fact that practically all the (few) decisions by the agency were revised or revoked in court.
In unanimously deciding to dismiss an administrative proceeding initiated to investigate an alleged cartel in the Brazilian and international market for electronic power steering systems (EPS), the Administrative Council for Economic Defense (Cade)’s Tribunal indicated last month that it will require a more robust standard of proof to demonstrate participation in antitrust conduct in cases originating from leniency agreements.
The opinion of the Administrative Council for Economic Defense (Cade) on freight price tables, issued on June 17, brought to light an important discussion that goes beyond the limits of this concrete case: the application of the antitrust exemption.
The Administrative Council for Economic Defense (Cade) launched in October of 2018 the Antitrust Remedy Guidelines. The Guidelines compile the best practices and procedures usually adopted by Cade in the design, application, and monitoring of remedies negotiated with parties to complex mergers. With the publication of the Guidelines, Cade aimed at giving greater predictability and transparency to the remedy negotiation process with parties involved in complex transactions that may not be subject to unconditional clearance.
On September 5, the Administrative Council for Economic Defense (Cade) issued a new regulation, Resolution No. 21/2018, to govern disclosure of sensitive materials produced in the course of administrative proceedings to investigate antitrust violations.
The Antitrust Law (Law No. 12,529/2011) establishes three objective criteria that determine whether a corporate transaction must be filed with the Administrative Council for Economic Defense (Cade), namely whether it produces effects in Brazil, characterizes economic concentration and meets the turnoverthreshold.
Cooperation between Bacen and Cade for joint action in cases involving the National Financial System
For more than a decade, the Central Bank of Brazil (Bacen) and the Administrative Council of Economic Defense (Cade) have been trying to define their respective jurisdiction to deal with issues related to the defense of competition in the national financial system.
This year, the Administrative Court of the Administrative Council for Economic Defense (Cade) has already rejected 50% more M&A transactions than in the almost five-year period between 2012, when the current Antitrust Law entered into force, and 2016.
Companies involved in asset acquisitions need to assess whether or not the transaction should be reported to Cade (the Brazilian antitrust agency). Recent decisions issued by the agency have provided very useful guidelines to conduct this evaluation, which is not always trivial, in view of the vague language of the Antitrust Law (Law No. 12,529/2011) and the lack of specific regulations.
Discussions among the commissioners of the Administrative Tribunal of the Administrative Council for Economic Defense (Cade) on the need to change the calculation of fines in cartel cases have created an environment of uncertainty for the legal and business community, especially after judgments issued at the end of last year. As a way to increase the effectiveness of the policy of repression and deterrence of antitrust violations, some commissioners argue that, instead of applying a percentage over the revenue of the cartelists, the fine should be tied to the gains deriving from the wrongdoing.
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