In its May 20 2015 judgment session the Administrative Council for Economic Defence (CADE) approved the Guidelines for Gun Jumping Analysis in Merger Filings. The primary purpose of the guidelines is to prevent the implementation of a transaction (full or partial) before receiving CADE's final approval. The guidelines enable parties to perform their activities in a legal way, minimising the risk of penalties
The Administrative Council for Economic Defence (CADE) recently approved Resolution 12, which regulates the consultation process stipulated under the Competition Law. Although the new consultation process is an important tool for clarifying questions regarding the application of competition laws, the submission of consultations must be considered with caution, as the CADE tribunal can initiate administrative procedures using the evidence that it has already received.
The Administrative Council for Economic Defence (CADE) recently approved Resolution 10, which sets forth the criteria for submitting associative agreements for CADE approval. Companies that meet the submission criteria must analyse their contracts carefully before they are executed. Applicable parties that do not notify CADE may be subject to fines of up to R60 million and may have previously implemented acts annulled.
The Administrative Council for Economic Defence recently cleared the first two mergers requiring remedies since the new Competition Law entered into force one year earlier. Both cases were analysed by other jurisdictions, since the companies are based abroad, and international cooperation with European competition agencies was effective in determining the cases' outcomes.
The Administrative Council for Economic Defence (CADE) recently fined the Brazilian Public Performance Collecting Rights Society (and its six associations) approximately $19 million for engaging in price fixing. CADE stated that the society and the associations had acted in a concerted manner to fix the rates that they collected in relation to royalties for public performances.
Following implementation of the new merger control regime, the Administrative Council for Economic Defence (CADE) has shifted its focus to establishing new settlement rules for its leniency programme, with the aim of encouraging more companies to blow the whistle on cartel cases. However, uncertainties in relation to fines and the new obligation to admit to participation in a cartel may undermine CADE's good intentions.
There is a general consensus that one of the main purposes of the new antitrust legislation is to reduce the submission of irrelevant M&A transactions and to allow the Administrative Council for Economic Defence to focus on relevant mergers and conduct cases. However, as far as investment funds are concerned, it appears that the legislation has not yet achieved its goal.
The new Brazilian antitrust legislation recently entered into force. The legislation includes changes to the pre-merger system, as well as the introduction of notification thresholds, statutory time periods and notification forms. The new regime aims to bring Brazil into line with US and European antitrust standards, and will present a significant challenge for the authorities and professionals that must adapt to the new system.
The Administrative Council for Economic Defence (CADE) recently granted an injunction suspending the rights of a steelmaker to buy shares in its rival. This ruling consolidates CADE's view that the acquisition of a minority stake in a rival company may generate competition concerns, even if the acquiring company has no relevant influence on the target deriving from its position as a minority shareholder.
The Administrative Council for Economic Defence (CADE) recently carried out an internal survey showing that a total of 892 merger cases were heard in 2011. According to CADE President Olavo Chinaglia, this impressive figure is a result of both the increasing number of notified cases, thanks to growth in the Brazilian economy, and the enhanced ability of CADE personnel to deal with the increasing workloads.
Congress has finally approved the new antitrust law. The bill makes several important changes that will affect the whole antitrust system. These include the creation of the Administrative Council for Economic Defence, the introduction of a pre-merger notification for merger control cases and an amendment to the notification threshold, as well as an increase in the penalty for cartel crimes.
CADE recently voted in favour of implementation of a performance agreement for BRFoods in response to its merger, which included suspension and sale of its brands. For many antitrust specialists, this decision represents a setback, as they feel that a strong competitor will not emerge to challenge BRFoods' market power. For the decision's critics, licensing of the brands would have been a safer way to ensure competition.
Brasil Foods SA was created around two years ago after Perdigão SA acquired its competitor Sadia SA. The Administrative Council for Economic Defence recently started its consideration of the merger. Following detailed analysis reviewer Carlos Ragazzo, a commissioner in charge of deciding the case, understood that the merger should be blocked. Final judgment has been postponed to allow for further discussion.
Vinicius Marques de Carvalho was recently nominated as the new head of the Secretariat of Economic Law (SDE). Carvalho is one of seven commissioners for the Administrative Counsel for Economic Defence (CADE) and his nomination has received a welcome response. It is hoped that his appointment will bring better communication between the SDE and CADE.
In 2010 the Administrative Counsel for Economic Defence (CADE) rendered a number of important decisions, thereby consolidating its position among the world's leading antitrust agencies. It judged 743 cases and reduced its average time for merger review. Changes are also expected for 2011, including a new pre-merger notification system and the creation of the CADE General Bureau.
There are no definite criteria used to determine the pecuniary contribution to be paid by a defendant which decides to enter into a settlement agreement with the Administrative Council for Economic Defence in a cartel administrative proceeding. According to Resolution 46/2007, the only existing parameter is the minimum value prescribed in Section 23(I) of Law 8.884/94, which regulates antitrust fines.
The Secretariat of Economic Law of the Ministry of Justice recently published a new regulation on procedural rules in competition matters - in particular, those governing the leniency programme. Pursuant to the new regulation, the marker system is clearer and more transparent and no longer requires that parties seeking a marker provide information about leniency applications in other jurisdictions.
At the end of 2009 the president of the Administrative Counsel for Economic Defence submitted to the board four proposals for new digests. The proposals were unanimously approved and published in the Official Gazette. The new digests are an important initiative from the antitrust authorities to ensure legal certainty and to keep companies, individuals and lawyers better informed as to how to proceed in certain situations.
The Administrative Council for Economic Defence (CADE) recently fined AmBev R352.7 million for anti-competitive conduct in the beer market. This is the highest fine that CADE has imposed on a company. CADE considered that AmBev's reseller loyalty and subsidy programme had the potential to harm competition, close the market and artificially increase competitors' costs.
The Secretariat of Economic Law (SDE) of the Ministry of Justice recently published a detailed report of its activities in 2008. The statistics demonstrate that the SDE has made some major improvements in its interaction and cooperation with the federal and state police and the federal public prosecutors in order to strengthen anti-cartel enforcement in Brazil.