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Content last updated: 23-10-2020

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  • Merger Control Regime
  • Merger Screening
  • Merger Filing

1. Supranationality

1.1 Membership of Supranational Organization

1.1.1 Is the jurisdiction a member of/party to a supranational jurisdiction?

No.

1.1.2 Is the jurisdiction itself a supranational jurisdiction?

Not applicable.

1.1.3 If the answer to Section 1.1.1 and/or 1.1.2 above is in the affirmative, what are the implications hereof?

Not applicable.

2. Nature of merger control regime

2.1 Mandatory or voluntary

2.1.1 Is filing mandatory or voluntary?

Filing to the Brazilian competition authority (the Administrative Council for Economic Defense - CADE) is mandatory if the jurisdictional thresholds are met.

2.2 Suspensory effect

2.2.1 Must completion of the transaction await clearance by the relevant authorities?

Completing a transaction that qualifies for mandatory notification before clearance is prohibited.

The parties cannot consummate the deal until the Administrative Council for Economic Defense (“CADE”) has completed its pre-merger review, and violation hereof is subject to penalty of voidability of the acts taken towards the completion of the transaction and imposition of a fine between BRL 60,000 and BRL 60,000,000 (depending on the economic condition of the parties, willful misconduct, bad faith and potential anticompetitive effects, among others) and, if applicable, commencement of administrative proceedings against the parties.

1. What type of transactions are caught by the merger control regime?

1.1 Concentrations

1.1.1 Type of transactions that are caught by the merger control rules?

The following transactions/events are caught by the merger control rules:

a) a merger involving two or more companies that were independent until then;

b) an acquisition of control over or parts of one or more companies – by purchase or swap of shares, membership units (quotas), securities or share convertibles, or tangible or intangible assets, by transaction of contract or otherwise;

c) an acquisition of a minority shareholding is caught by the merger control rules in the following circumstances:

1. When the investee is not a competitor or active in a vertically related market:

(i) acquisition conferring upon the acquirer the direct or indirect ownership of 20% or more of the capital stock or voting capital of the investee; or

(ii) acquisition by an owner of 20% or more of the total or voting capital, provided that the ownership interest directly or indirectly acquired, from at least one seller taken individually, equals or exceeds 20% of the total or voting capital.

2. When the investee is a competitor or active in a vertically related market:

(i) acquisition conferring a direct or indirect ownership interest of at least 5% of the total or voting capital; or

(ii) most recent acquisition which, individually or together with others, results in an increase in ownership interest at or above 5%, where the investor already holds 5% or more of the total or voting capital of the investee.

d) when one or more companies absorb another company or companies;

e) when two or more companies enter into an associative agreement, consortium or joint venture agreement.

1.2 Joint ventures

1.2.1 What types of joint ventures are caught by the merger control rules?

Joint ventures that have an effect on Brazilian markets are caught by the merger control rules. The 2011 Competition Act exempts only joint ventures for the specific purpose of participating in public tenders.

1.3 Definition of "control"

1.3.1 How are the concepts of "control" and "change of control" defined?

“Control” is defined by the Administrative Council for Economic Defense (“CADE”) as the ability to interfere in the decision-making process related to commercially sensitive issues of a company.

1.4 Minority shareholdings

1.4.1 Are minority and other interests less than control caught by the merger control rules?

The acquisition of minority shareholdings or of material competitive influence below the level of control may be sufficient, see Section 1.1.1 above.

2. Establishing jurisdiction for notification of mergers

2.1 Merging parties/undertakings concerned

2.1.1 Which undertakings are considered parties to the merger ("undertakings concerned") in the various types of transactions identified under Section 1.1.1 and 1.2.1.

The undertakings concerned are the entities directly involved in the transaction and their respective economic groups.

In acquisitions of control or minority equity holdings, the undertakings concerned are the purchaser and the target company and their groups.

In mergers the undertakings concerned are the merging companies and their groups.

In the other cases, the undertakings concerned are the parties to the contract and their groups.

2.2 Date for establishing jurisdiction

2.2.1 Which date is relevant for concluding whether the transaction is notifiable?

Whichever date is earlier of the date of conclusion of the binding legal agreement; the announcement of a public bid or the acquisition of a controlling interest.

In relation to the acquisition of securities convertible into shares, the notification of such acquisition is only required when, cumulatively,  

a) the future conversion into shares falls under any of the events set out in Section 1.1.1, letters b) and c) No. 1. and 2.; and

b) the security or value involved entitles the acquirer to designate members for management or inspection bodies, or provides voting or veto rights over competition-sensitive issues, except for the rights already prescribed by law.

Further, in relation to a public offer of securities convertible into shares, no prior approval is required from the Administrative Council for Economic Defense (“CADE”) for subscription of such securities, but any decision-making rights attached to the securities acquired must not be exercised until the transaction is cleared by the CADE.

2.3 General thresholds

2.3.1 Threshold(s) for when a concentration must be notified under the general merger control regime?

Merger control filing is required when:

  • At least one of the undertakings concerned had a turnover of at least BRL 750,000,000 in Brazil in the last financial year, and at least one of the other undertakings concerned had a turnover of BRL 75,000,000 in Brazil in the last financial year; and
  • The proposed transaction has or may have effects in Brazil (local nexus).
The undertakings concerned whose turnover is included in the calculation are defined in Sections 3.3.1 to 3.3.3 below.

2.3.2 For each threshold, can the threshold be triggered by only one undertaking having local turnover?

No threshold can be triggered without both undertakings concerned (including economic groups) having turnover in Brazil.

Further, in order to assert jurisdiction in the Brazilian territory, it is necessary that the target or its subsidiaries have links with the Brazilian territory (please refer to Section 2.5.1 for an explanation on this topic).

2.3.3 For each threshold, can the threshold be triggered without any undertaking having local turnover?

No threshold can be triggered without both undertakings concerned (including economic groups) having turnover in Brazil.

Further, in order to assert jurisdiction in the Brazilian territory, it is necessary that the target or its subsidiaries have links with the Brazilian territory (please refer to Section 2.5.1 for an explanation on this topic).

2.3.4 Are there any circumstances where transactions falling below these thresholds may be still investigated?

Under the 2011 Competition Act, the Administrative Council for Economic Defense (“CADE”) is entitled, within one year from the closing date, to request notification of transactions that do not reach the turnover thresholds. The purpose is to allow CADE to assess a potential competition harm resulting from a transaction involving players that do not meet the turnover thresholds, for example, but which could generate significant concentration in the relevant markets involved and an injury to competition.

2.4 Other national thresholds for ex ante merger control (e.g. sector-specific rules)

2.4.1 Relevant thresholds for sector-specific or other ex ante merger control rules?

There are no sector-specific or other ex ante merger control rules.

2.4.2 Are any such schemes mandatory or voluntary?

Not applicable.

2.5 Foreign-to-foreign mergers

2.5.1 Do any exemptions, special thresholds etc. apply to foreign-to-foreign mergers, i.e. where none of the undertakings concerned is domiciled in the jurisdiction?

Transactions “wholly or partially performed within the Brazilian territory” are caught by the Brazilian merger control rules if the parties’ economic groups reach the turnover thresholds and “the effects of [such deals] are or may be felt in Brazil”.

In relation to the ”effects test”, the Administrative Council for Economic Defense’s (“CADE”) General Superintendence has decided in previous cases that the creation of joint ventures (JV) involving economic groups that have met the turnover thresholds in Brazil are not considered to be subject to mandatory notification if the relevant markets involved in the transactions are local/limited to certain regions, i.e., the products/services involved would not potentially reach Brazil in view of their nature (geographic limitation). The companies involved in those cases argued that the creation of the JVs was not subject to mandatory notification to the CADE, taking into consideration, for instance, that (a) the JV resulting from the deal would be active only outside Brazil and (b) the JV would not generate turnover or have assets in Brazil and there were no plans of expanding the business to Brazil. The CADE considered that the products/services to be offered would not be sold in Brazil due to their characteristics. In its analysis, the CADE’s General Superintendence focused on the characteristics of the relevant markets and considered that it was highly unlikely for the geographic scope of the relevant markets to be considered worldwide.

3. Calculation and allocation of turnover, asset value, transaction value etc.

3.1 Relevant turnover

3.1.1 How is turnover defined (e.g. is income from other sources than "ordinary activities to be included, and how are rebates, taxes, internal turnover etc. treated)?

Turnover is defined as the total amount a company invoices for sales of products or services in a given period, which includes the activities of the company involved in the transaction and the activities of the other companies in its economic group. The Administrative Council for Economic Defense (“CADE”) does not accept the exclusion of rebates, taxes, intragroup sales etc.

3.1.2 Identification and link to any official rules, guidance etc. on how to calculate turnover?

The Administrative Council for Economic Defense (“CADE”)´s Regulation No. 2/2012 defines all the factors taken into consideration to calculate the turnover for the purposes of assessing whether the economic groups involved in the deal meet the turnover thresholds.

The Regulation can be found at:

http://www.cade.gov.br/assuntos/normas-e-legislacao/resolucao/resolucao-2_2012-analise-atos-concentracao.pdf/view

(Only in Portuguese)

3.2 Relevant period for calculation of turnover

3.2.1 Which financial year(s) is relevant for the calculation of turnover?

The turnover should be based on an annual gross turnover or overall volume of business in Brazil in the year before that of the deal. If the audited annual turnover relating to the previous year is not yet finalized, the Administrative Council for Economic Defense (“CADE”) tends to accept the latest one available.

3.2.2 Should adjustments be made for e.g. divestitures, acquisitions, closings and other changes of the economic reality of the undertaking concerned made after or during the relevant financial year?

Adjustments must be made for any divestitures/acquisitions made during/after the latest financial year. Turnover stemming from such divested/acquired assets should be excluded/included.

3.3 Relevant undertakings for the calculation of turnover

3.3.1 The undertakings whose turnover is taken into account?

Under Regulation No. 2/2012 the undertakings whose turnover is taken into account are:

Article 4. Parties to the deal mean the entities directly involved in the deal being notified and the respective economic groups.

Paragraph 1. For purposes of calculating the turnovers set forth in article 88 of Law 12529/2011, economic group means, cumulatively:

(i) the companies under common control, internal or external; and

(ii) the companies in which any of the companies referred to in item I directly or indirectly owns at least twenty percent (20%) of the capital stock or voting capital.

Paragraph 2. In the case of investment funds, for purposes of calculating the turnover dealt with in this article, members of the same economic group mean, cumulatively:

(i) the economic group of each shareholder that directly or indirectly holds fifty percent (50%) or more of the shares in the fund involved in the deal, whether individually or through any type of shareholders’ agreement; and

(ii) the companies controlled by the fund involved in the deal as well as the companies in which such fund directly or indirectly holds an ownership interest equal to or higher than twenty percent (20%) of the capital stock or voting capital.

For access to Regulation No. 2/2012, please refer to Section 3.1.2 above.

3.3.2 Shall the turnover of the existing seller be included in the target's group turnover?

The seller's turnover shall be included in the target's group turnover, provided that, before the transaction, (i) the target and the seller are under common control; or (ii) the seller holds at least 20% of the capital stock or voting capital of the target.

3.4 Geographical allocation of turnover

3.4.1 The principles for the geographical allocation of turnover?

The Administrative Council for Economic Defense (“CADE”) usually considers turnover generated from provision of services and/or sales of products carried out in Brazil or into Brazil (via exports, for example).

3.5 Valuation and allocation of assets

3.5.1 The principles for valuation and allocation of assets?

Not applicable.

3.6 Calculation of other thresholds

3.6.1 The principles for calculation of metrics for other thresholds (e.g. transaction value, market share, share of supply etc.)?

Not applicable.

3.7 Special rules

3.7.1 Do any special rules or principles apply to the calculation, allocation etc. of turnover, assets etc. for specific undertakings (e.g. State-owned undertakings, investment funds, credit and financial institutions, insurance companies, financial holding companies, others)?

Specific rules apply to the calculation of turnover for state-owned entities, meaning that the state (whether it is the Federal, State or Municipal level) will not be included in the calculation of the turnover. This also means that two separate state-owned entities will not be considered part of the same economic group, unless there is another company that controls or holds at least 20% of the capital stock or voting capital of the two state-owned entities.

3.7.2 Does any exemptions apply?

Not applicable.

3.8 Currency conversion

3.8.1 The exchange rate applied and applicable exchange rate date for conversion of the value of turnover and assets of undertakings in other jurisdictions?

For the purpose of calculating the turnover mentioned in the Article 88 of Law 12,529, 2011, the exchange rate to be used shall be that referring to the last business day of the year preceding the merger (31 December).

For undertakings whose fiscal year ends on a day other than 31 December, it is possible to use the rate of the last business day of the financial year, e.g. if the financial year runs from 1 April to 31 March, the Administrative Council for Economic Defense may consider the exchange rate as that of the last business day of the financial year, i.e. 31st March.

1. Practical information

1.1 Responsibility for filing

1.1.1 The parties responsible for filing?

The application must be filed, whenever possible, jointly by the parties to the deal. More specifically, the application must be submitted, where possible, jointly:

in acquisitions of control or equity holdings, by the acquirer and the target;

in mergers, by the merging companies;

in the other cases, by the parties to the contract.

1.2 Deadlines for filing

1.2.1 Are there any mandatory deadlines for filing, and, if so, how these are calculated?

There are no mandatory deadlines for filing.

However, the parties cannot consummate the deal until the Administrative Council for Economic Defense (“CADE”) has completed its pre-merger review, and violation hereof is subject to penalty of voidability of the acts taken towards the completion of the transaction and imposition of a fine between BRL 60,000 and BRL 60,000,000 (depending on the economic condition of the parties, willful misconduct, bad faith and potential anticompetitive effects, among others) and, if applicable, commencement of administrative proceedings against the parties.

1.2.2 Are there any sanctions for not filing within the deadlines?

Not applicable.

1.2.3 What are the sanctions for not filing a notifiable transaction?

The parties cannot consummate the deal until the Administrative Council for Economic Defense has completed its pre-merger review. Violation hereof is subject to penalty of voidability of the acts taken towards the completion of the transaction and imposition of a fine between BRL 60,000 and BRL 60,000,000, depending on the economic condition of the parties, willful misconduct, bad faith and potential anticompetitive effects, among others, as per Regulation No. 24/2019, and, if applicable, commencement of administrative proceedings against the parties.

1.3 Early filing

1.3.1 Is it possible to file before the signing of merger agreement?

Filing should be made, preferably, after the signature of the formal instrument that binds the parties and before any act related to the transaction is consummated. Therefore, it is possible to file before the signing of the merger agreement. However, in these cases, parties usually file based on a memorandum of understanding or term sheet containing sufficient information on the competitive aspects of the deal. The parties must forthwith report on supervening changes to the initial notification, if applicable.

1.4 Filing fees

1.4.1 Are there any fees for filing, and, if so, please describe how such fees are calculated?

A filing fee in the amount of BRL 85,000 must be paid for the Administrative Council for Economic Defense (“CADE”)’s merger control to take place.

1.4.2 When must the filing fee must be paid?

Prior to notification. The receipt of payment must be presented at the time of the filing.

1.5 Publicity

1.5.1 When and in which format will the authority publish receiving a notification?

The Administrative Council for Economic Defense (”CADE”) publishes an announcement of the notification in the official gazette, which only includes the names of the parties involved, the names of the attorneys involved, the nature of the merger and the economic activities involved. The notification form and other non-confidential documents will be made available on CADE’s website after such publication.

1.5.2 How will the authority in general handle the case publicly, e.g. will it usually comment in the media, send out press releases etc.?

In addition to the publication of the announcement in the official gazette, the Administrative Council for Economic Defense (“CADE”) tends to comment on cases only after their conclusion.

1.5.3 Will third parties be able to review the notification?

The 2011 Competition Act allows potential complainants to join in as “interested third parties.” The interested third party must do so within 15 days from the publication of the announcement in the official gazette, putting forth all documents and expert opinions necessary to prove its claims (under exceptional circumstances and at its sole discretion, the Administrative Council for Economic Defense’s (“CADE”) General Superintendent may grant an additional 15 days when strictly necessary).

The interested third party may voice its opinion on the transaction and prompt discussions and analyses to be conducted by the CADE. Additionally, if the CADE’s General Superintendence gives unconditional clearance to the deal, the interested third party can appeal this decision to the CADE’s Tribunal, within 15 days from publication of the decision, which will then re-examine the case and render a final ruling.

Alternatively, a company not acting as an interested third party may even so voice its opinions via responses to the CADE’s requests for information.

Further, with respect to transactions involving regulated markets (telecom, sanitary, health, energy, oil, aviation and others), regulatory agencies may appeal the CADE’s General Superintendence’s decision of approval of the transaction to the CADE’s Tribunal within 15 days from publication of the decision.

2. Procedure and timing

2.1 Normal and simplified procedures

2.1.1. Does the regime allow for a simplified (fast track) procedure, and, if so, what are the criteria for using the simplified procedure?

A simplified (fast-track) review procedure applies when:

a) two or more separate companies set up a joint venture under common control solely and exclusively to pursue a share in markets where products/services are not horizontally or vertically related;

b) the acquirer or its group did not participate, before the transaction, in the market involved, or in the vertically-related markets, or in other markets where the acquiree or its group operated;

c) the transaction leads to control of less than 20% in the relevant market;

d) none of the applicants or their respective economic groups controls more than 30% in any of the vertically integrated relevant markets; or

e) the high horizontal overlaps are not a direct result of the transaction (HHI variation is inferior to 200, provided that the deal entails no control above 50% over a portion of the relevant market).

2.2 Procedural stages (cf. timetable below)

2.2.1 The various stages of (i) a simplified procedure and (ii) a normal procedure?

At the discretion of the applicants, the Administrative Council for Economic Defense (“CADE”)’s General Superintendence may hold meetings prior to the notification of the deal subject to notification under the normal procedure, for which the main aspects of the case shall be presented.

The applicants are allowed to submit, informally, a draft notification form to the sectoral General Coordinations, for preliminary analysis of the information presented, before the formal notification takes place.

The Screening Sector will only review the draft notification form of merger acts presented under the simplified procedure sporadically, in order to resolve relevant doubts regarding the applicability of the fast-track procedure to the specific case, or if there are any questions regarding the assertion of jurisdiction in the transaction, including in cases involving associative agreements.

After the formal notification of the deal, and if the notification of the deal is deemed complete by the sectorial General Coordination, the official in charge of the case will prepare the publication of the announcement of the concentration act.

Third parties whose interests may be affected by the merger must submit a request to be admitted as interested third party(ies) within 15 days after the publication of the announcement.

The Administrative Council for Economic Defense (“CADE”) has up to 240 days to review transactions not qualifying for the fast-track procedure (extendable up to an additional 90 days for complex transactions), counting from filing of the notification (or amended notification, if any). The CADE has taken 60–90 days on average to review them. The review of the decision by the CADE’s Tribunal is not mandatory and will only take place in the following scenarios: (i) recommendation by the CADE’s General Superintendence of imposition of remedies or rejection of the transaction; or (ii) appeals by an interested third party, appeal by the relevant regulatory agency or requests to review the case further by one of the CADE’s Tribunal Commissioners against a recommendation by the CADE’s General Superintendence to approve the transaction.

In fast-track procedure cases, the General Superintendence has 30 days to review the transaction, counting from filing of the notification (or amended notification, if any). On average, the CADE has completed the review of fast-track procedures in less than 20 days.

Having envisioned the need for remedies, the General Superintendence should communicate to the applicants on the competitive concerns generated by the transaction. Once the concerns that may lead to discussions about remedies are identified, the parties may initiate discussions with the CADE’s General Superintendence or wait for the General Superintendence’s recommendation to the CADE’s Tribunal. Parties may then engage in negotiations with the reporting Commissioner chosen to review the case at the Tribunal level.

If remedies are negotiated with or imposed by the CADE’s Tribunal as a condition for approval of the deal, the records of the administrative procedures will be forwarded to the Specialized Federal Attorney's Office at the CADE for a statement on compliance with the decisions, commitments and agreements adopted by the CADE.

Finally, the records will be forwarded to the CADE Tribunal, where compliance with the decision, commitment or agreement will be assessed.

2.2.2 Is pre-notification contact with the relevant authorities customary/obligatory/encouraged/etc.?

Pre-notification contact is encouraged in cases of ordinary (normal) procedure cases.

2.2.3 Are there any sanctions for not filing within the deadlines?

Not applicable.

2.3 Timetable (cf. timetable below)

2.3.1 The statutory timetable/deadlines for review of a notification?

The Administrative Council for Economic Defense’s (“CADE”) General Superintendence has 30 days to review transactions filed under the fast-track procedure, counting from filing of the notification (or amended notification, if any). On average, the CADE has completed fast-track procedures in less than 20 days.

The CADE has 240 days to review transactions not qualifying for the fast-track procedure (extendable up to an additional 90 days for complex transactions), counting from filing of the notification (or amended notification, if any). The CADE has taken 60–90 days on average to review them.

2.3.2 Can the statutory timetable/deadlines be suspended ("stop-the-clock"), and if so under which conditions?

The Administrative Council for Economic Defense (“CADE”) cannot freely stay the timeframe, but it can call on the parties to amend the notification, resetting the countdown. In case of lack of minimum quorum of the CADE’s Tribunal due to the end of the terms of at least four commissioners, the timeframes (even those at the General Superintendence level) are also stayed.

2.3.3 If pre-notification with the relevant authorities contact is possible/customary, how long will the duration of such contact usually be?

Pre-notification contact with the Administrative Council for Economic Defense (“CADE”)’s General Superintendence usually takes from two to four weeks.

3. Format and content of notification

3.1 Notification forms

3.1.1 Must the notifying parties use any mandatory notification forms, e.g. for simplified and normal procedures, and, if relevant, add a link to the relevant forms?

The Administrative Council for Economic Defense (“CADE”) has mandatory notification forms for simplified and normal procedures, which are attached as Annex I and Annex II, respectively, to CADE´s Regulation No. 2/2012, available only in Portuguese.

Please see: http://www.cade.gov.br/assuntos/normas-e-legislacao/resolucao/resolucao-2_2012-analise-atos-concentracao.pdf/

3.2 Supporting documentation

3.2.1 List of the supporting documentation which must as a minimum be submitted along with the notification?

Cf. checklist below.

The following documents, among others, may only be submitted in a foreign language when accompanied by a translation into Portuguese:

a) contractual instruments relating to the transaction;

b) shareholders’ agreements;

c)  non-compete agreements; and

d)  bylaws.

The Portuguese translation must be signed by a sworn translator or its content must be certified by the attorney for the party that submits it through a statement that the translation is accurate, under his/her personal responsibility and liability.

3.3 Originals, legalization and apostillation (cf. checklist below)

3.3.1 List of all documents which must be submitted in original/legalized versions and whether any documents must be apostilled?

Powers of attorneys should preferably be apostilled or submitted in legalized versions.

3.3.2 If the merger regime has a mandatory filing deadline, must all the documents identified under Section 3.3.1 be submitted within this deadline?

Not applicable.

3.4 Language

3.4.1 Which languages may be used for drafting and filing a notification?

The notification must be made in Portuguese.

3.4.2 Does translations have to be certified/legalized and apostilled?

The Portuguese translation must be signed by a sworn translator or its content must be certified by the attorney for the party that submits it through a statement that the translation is accurate, under his/her personal responsibility and liability.

Statutory timetable

Step Description Time
1

Pre-notification

Pre-notification contact is encouraged in cases of ordinary (normal) procedure cases.

At the discretion of the applicants, the Administrative Council for Economic Defense (“CADE”)’s General Superintendence may hold meetings prior to the notification of the deal subject to notification under the normal procedure, for which the main aspects of the case shall be presented.

The applicants are allowed to submit, informally, a draft notification form to the sectoral General Coordinations, for preliminary analysis of the information presented, before the formal notification takes place.

The Screening Sector will only review the draft notification form of merger acts presented under the simplified procedure sporadically, in order to resolve relevant doubts regarding the applicability of the fast-track procedure to the specific case, or if there are any questions regarding the assertion of jurisdiction in the transaction, including in cases involving associative agreements.

Pre-notification contact with the Administrative Council for Economic Defense (“CADE”)’s General Superintendence usually takes from two to four weeks.

2

Phase I

After the formal notification of the deal, and if the notification of the deal is deemed complete by the sectorial General Coordination, the official in charge of the case will prepare the publication of the announcement of the concentration act.

Third parties whose interests may be affected by the merger must submit a request to be admitted as interested third party(ies) within 15 days after the publication of the announcement.

In fast-track procedure cases, the General Superintendence has 30 days to review the transaction, counting from filing of the notification (or amended notification, if any). On average, the CADE has completed the review of fast-track procedures in less than 20 days.

The Administrative Council for Economic Defense (“CADE”) has up to 240 days to review transactions not qualifying for the fast-track procedure (extendable up to an additional 90 days for complex transactions), counting from filing of the notification (or amended notification, if any). The CADE has taken 60–90 days on average to review them. The review of the decision by the CADE’s Tribunal is not mandatory and will only take place in the following scenarios: (i) recommendation by the CADE’s General Superintendence of imposition of remedies or rejection of the transaction; or (ii) appeals by an interested third party, appeal by the relevant regulatory agency or requests to review the case further by one of the CADE’s Tribunal Commissioners against a recommendation by the CADE’s General Superintendence to approve the transaction.

Having envisioned the need for remedies, the General Superintendence should communicate to the applicants on the competitive concerns generated by the transaction. Once the concerns that may lead to discussions about remedies are identified, the parties may initiate discussions with the CADE’s General Superintendence or wait for the General Superintendence’s recommendation to the CADE’s Tribunal. Parties may then engage in negotiations with the reporting Commissioner chosen to review the case at the Tribunal level.

If remedies are negotiated with or imposed by the CADE’s Tribunal as a condition for approval of the deal, the records of the administrative procedures will be forwarded to the Specialized Federal Attorney's Office at the CADE for a statement on compliance with the decisions, commitments and agreements adopted by the CADE.

Finally, the records will be forwarded to the CADE Tribunal, where compliance with the decision, commitment or agreement will be assessed.

The Administrative Council for Economic Defense’s (“CADE”) General Superintendence has 30 days to review transactions filed under the fast-track procedure, counting from filing of the notification (or amended notification, if any). On average, the CADE has completed fast-track procedures in less than 20 days.

The CADE has 240 days to review transactions not qualifying for the fast-track procedure (extendable up to an additional 90 days for complex transactions), counting from filing of the notification (or amended notification, if any). The CADE has taken 60–90 days on average to review them.

Please be aware that "stop-the-clock" is possible (cf. 2.3.2 above).

  • Step 1 1
  • Step 2 2
  • 2-4 weeks
  • 30 days / 240 + 90 days

Checklist

List of the supporting documentation which must as a minimum be submitted along with the notification.

Ordinary procedure (full form – Annex I)

Fast-track procedure (Annex II)

This content was delivered
and last updated on 23-10-2020 by
Contact Person
Leonardo Rocha e Silva, Partner
Contact Person 2
José Rubens Battazza Iasbech, Senior Associate
CONTACT DETAILS:

Pinheiro Neto Advogados has provided all input about merger control in Brazil. Pinheiro Neto Advogados is a Brazilian, independent, full-service firm specializing in multi-disciplinary deals and in translating the Brazilian legal environment for the benefit of local and foreign clients. The Firm's antitrust group's success in merger review is boosted by the team's broad experience and business-oriented approach. Pinheiro Neto has an undisputed record of positive results in the most important local and global matters that the Brazilian antitrust authority has reviewed. Over the years, Pinheiro Neto has built a stable and positive relationship with the antitrust authority and has a distinguished reputation when it concerns ethics and technical skills.

The Firm's role in the development of the antitrust in Brazil also includes participation in the construction of the Brazilian antitrust policy. Pinheiro Neto has contributed to the changes in the Brazilian antitrust law since its beginning in the 1960s until, more recently, in its amendments in the 1990s and 2010s. Additionally, it has a crucial role in leading Brazil's association of antitrust professionals, IBRAC, responsible for promoting discussions between lawyers, economists, antitrust authority's officials, judges, and the antitrust community abroad.

Leonardo Rocha e Silva has more than 25 years of experience in complex investigations into anticompetitive practices, merger filings and compliance trainings. Based in Brasilia, he is praised by the market as a result-oriented expert on Brazilian procedural law, having handled multibillion-dollar cases for multinational companies involved in complex litigation before the Brazilian courts. Highly skilled in CADE negotiations, he has developed a trustful relationship with the Brazilian authorities, and is known by his technical knowledge and great judgment when counselling clients. Leonardo worked in the UK and Switzerland. He holds an LLM in international economic law from the University of Warwick (1999), and a postgraduate degree in economics and corporate law from Fundação Getúlio Vargas (Brasília, 1998).

José Rubens Battazza Iasbech focuses mainly on competition law and civil and commercial litigation. His practice in competition law includes merger review cases and investigations, comprising cartels, vertical restraints and abuse of dominance, negotiation of settlement agreements with CADE, judicial litigation, and general antitrust counselling. With respect to the litigation practice, José Rubens is used to dealing with complex commercial and civil disputes in a creative and innovative manner, having experience in civil liability, corporate matters, breach of contract, international cooperation (Letters Rogatory, enforcement of foreign judgment) and in relation to the appeals system to the Brazilian Superior Courts. José Rubens has an LLB degree from UniCEUB and holds a PgD Diploma in Civil Procedural Law from the Instituto Brasiliense de Direito Público – IDP and a PgD Diploma in EU Competition Law from King’s College London. José Rubens is currently undertaking a Professional Masters Degree in Law at the Instituto Brasiliense de Direito Público – IDP.

For more information about Pinheiro Neto Advogados and merger control in Brazil, please contact our Partner directly.

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