Merger control in Brazil – CADE – 2017 Latin American and Caribbean Competition Forum
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Transcript of Merger control in Brazil – CADE – 2017 Latin American and Caribbean Competition Forum
Merger Control in Brazil
Amanda Athayde
Chief of Staff of the General Superintendence and Head of the Leniency Unit [email protected]
16 X 74 fast-track non fast-track
Number of days for a merger review
Outline
1. CADE’s Structure and recent legislative modifications
2. Merger Control Statistics
3. Guidelines on Horizontal Mergers and Gun Jumping 4. Main cases in 2016: a quick overview
Outline
1. CADE’s new structure and recent legislative modifications
2. Merger Control Statistics
3. Guidelines on Horizontal Mergers and Gun Jumping 4. Main cases in 2016: a quick overview
1. CADE’s Structure and recent legislative modifications
Former Structure – Law 8884/94 New Structure: Law 12.529/11
Cade Administrative Tribunal
Seae
Mergers
SDE
Anticompetitive Conducts
Cade Tribunal
General Superintendence (SG) Department of Economic Studies
Seae
Advocacy
1. CADE’s Structure and recent legislative modifications
1962 CADE was created
1994 Law No. 8884
No merger control
2012 Law No. 12529
Post-merger control Pre-merger control
Low degree of International cooperation
High degree of International cooperation
1. CADE’s Structure and recent legislative modifications
Filing
Fast track Non-fast track
Clearance Clearance Remedies
General Superintendence
Challenge
Tribunal Decision Remedies
Decision Request for further review
Filing less formality: frequent contact with the parties to guarantee the quality and
accuracy of the presented information
1. CADE’s Structure and recent legislative modifications
240 days 60 days
90 days 120 days - GS 120 days - Tribunal
Fast-track cases: 30 days Non fast-track cases: 240 + 60 or 90 days (maximum 330 days)
Outline
1. CADE’s new structure and recent legislative modifications
2. Merger Control Statistics
3. Guidelines on Horizontal Mergers and Gun Jumping 4. Main cases in 2016: a quick overview
• Merger notifications and decisions
2. Merger Control Statistics in Brazil
92% Cleared without restrictions (353 SG and 7 Tribunal) 2% Approved with restrictions (5 settlements and 1 unilateral imposition of conditions Tribunal) 5% (19) non notifiable 1% (5) filed No cases rejected by CADE (although 1 case withdrawn by the parties)
• Time frame analysis (including both the SG and the Tribunal)
2. Merger Control Statistics in Brazil
Non fast-track cases (complexes): ordinary filing proceeding (74 days) Fast-track cases: simplified filing proceeding (16 days) Average (28 days)
No “stop-the-clock” possibility
Outline
1. CADE’s new structure and recent legislative modifications
2. Merger Control Statistics
3. Guidelines on Horizontal Mergers and Gun Jumping 4. Main cases in 2016: a quick overview
• Update of the 2001 Guidelines • Aligned with the new pre-merger review system • Steps of the analysis (not mandatory):
• Definition of the relevant market • Analysis of the horizontal concentration level • Assessment of the probability of use of market power
after the merger • Valuation of the existing purchasing power in the
market • Weighting of economic efficiencies inherent to the
merger • Complementary methods: simulations, contra
factual analysis and maverick eliminations
3. Guidelines on Horizontal Mergers and Gun Jumping
• Penalties: nullity of the transaction and fines, which ranges from BRL 60,000 to 60 million
• Guidelines structure: • Gun Jumping “categories” and examples
• Exchange of information between companies involved in merger transactions
• Contractual clauses governing the relationship • Activities before and during the negotiation
• Procedures to mitigate the risks • Penalties possibly imposed
3. Guidelines on Horizontal Mergers and Gun Jumping
New Draft Guidelines on Merger Remedies: expected to 2017
Outline
1. CADE’s Structure and recent legislative modifications
2. Merger Control Statistics
3. Guidelines on Horizontal Mergers and Gun Jumping 4. Main cases in 2016: quick overview
4. Main Cases: quick overview
• Merger cases:
• Bradesco/HSBC (Aug 2016)
• Hypermarcas/Reckit Benckinser (Sept 2016)
• John Deere/Precision Planting (Feb 2017)
4. Main Cases: quick overview
• Gun Jumping cases:
• 5 cases in 2016 (11 since the new Law 12.529/2011)
• International merger: Cisco Systems Inc./Technicolor S/A
• National merger: Shimano/Blue Cycle