Latest Improvements to Brazilian Merger Control Filings
The so-called Brazilian Competition Defense System (SBDC) has been working hard to improve the Brazilian antitrust system and optimize both the analysis of highly complex merger review cases and anticompetitive practices investigations. Among the recent actions taken to avoid further and continuous complaints that often place the system’s efficiency in the spotlight, is the 2-year cooperation agreement entered into between the Administrative Economic Defense Council (CADE) and the Secretariat of Economic Law (SDE), of the Ministry of Justice, which was published in the Official Gazette on August 20, 2007. Under this cooperation agreement, the analysis of formal requirements to be met by filed documents regarding transactions not raising competitive concerns (and thus subject to the fast track procedure or “procedimento sumário”, as it is known in Portuguese), will be performed by CADE’s Attorney-General’s Office (and no longer by the SDE). In Brazil, government action in the antitrust field is conducted by three bodies which make up the SBDC. These are: (i) the SDE, which has the responsibility of fact finding in cases of economic concentration and in anticompetitive practices; (ii) the Secretariat of Economic Surveillance (SEAE), which issues economic opinions that are mandatory in economic concentration acts and optional in investigations on anticompetitive conducts, and (iii) CADE, which is the administrative court ruling on cases brought to it. Accordingly, while the SDE and the SEAE have investigative roles, CADE has a decision-making role. Therefore, CADE’s Attorney-General’s Office will issue its final conclusions on less complex cases in a standard form in which it will ascertain whether for instance: (i) filing fees have been paid correctly by the applicant, (ii) a notice has been published in the Official Gazette calling third parties to express their opinion about the transaction under analysis, and (iii) the applicant is duly represented. Such change will not only allow the SDE to focus on the analysis of highly complex cases, but also reduce the duplication of effort and time delays associated with multiple agency reviews. Moreover, whenever the SDE’s opinion on a less complex case subject to the fast track procedure converges with the SEAE opinion on the same case, the SDE will be allowed to simply declare that it is in agreement with the terms of the SEAE opinion without having to issue a report on it. This cooperation agreement, together with several other remarkable measures (such as the issuance of “stare decisis” or súmulas by the CADE, the bill to reform Brazil’s Antitrust Law, the new CADE internal policy rules and others) that have been adopted by the antitrust authorities to improve the Brazilian antitrust system, will certainly result in the enhancement of the agencies’ capacity to undertake sophisticated economic analysis and will ultimately result in an improvement in the quality of services provided to society.