i The Brazilian competition authority and the pre-merger control system
The Brazilian Competition Act (Law 12,529/2011) is the main statute governing merger control in Brazil. The Competition Act establishes a pre-merger review system, whereby parties to transactions that trigger a merger notification to the Brazilian Competition Authority (CADE) need to obtain antitrust clearance before closing them. For these transactions, CADE's clearance is a legal condition precedent to closing.
CADE is comprised of the following entities:
- the Superintendent-General Office (SG): headed by CADE's Superintendent-General, this is the entity in charge of reviewing all transactions submitted for merger control and clearing those that can be approved without CADE's intervention;
- CADE's Administrative Tribunal: composed of six commissioners and a president, this is the decision-making body in charge of ultimately deciding the cases that are challenged by the SG and the appeals presented by interested third parties against the SG's decision to clear transactions; and
- the Department of Economic Studies: headed by CADE's Chief Economist, this is a consulting body responsible for rendering non-binding economic opinions and preparing economic studies at the request of the Superintendent-General and the commissioners of the Administrative Tribunal.
ii When pre-merger notification is required
Under the Competition Act, CADE has jurisdiction to analyse and decide transactions carried out in Brazil or abroad, provided that they are able to produce effects in the Brazilian territory.2 The approach usually adopted to define whether a transaction carried out abroad has the potential of producing effects in Brazil is to check if the target company (or target business, depending on the structure of the transaction) has a subsidiary in Brazil or if it has revenues originating in Brazil. Under existing case law, even if sales are merely occasional, they could be enough for the transaction to meet the effects criteria.
Transactions that qualify as concentration acts
If a transaction has jurisdictional nexus to Brazil, it is necessary to determine whether the transaction qualifies as a 'concentration act' under the Competition Act, requiring notification if the turnover thresholds are met. The Competition Act provides that the following transactions qualify as concentration acts3 for merger control purposes:
- the amalgamation of two or more previously independent companies;
- the direct or indirect acquisition of control or minority stakes in a company or group of companies, including the purchase or exchange of shares, quotas, bonds or securities convertible into shares, or tangible or intangible assets, by means of contractual instruments or any other mean or form;4
- the merger of one company into another company; and
- the execution of an associative agreement, consortium or joint venture among two or more companies.
In Regulation No. 17/2016, CADE has defined the following criteria to qualify agreements as 'associative agreements' that would trigger a notification requirement under the Competition Act:
- agreements with a duration of two years or more, including possible renovations;
- the establishment of a joint enterprise between the parties with the purpose of engaging in an economic activity;
- the sharing of risk and profits between the parties; and
- the parties compete in the relevant market affected by the agreement.
The Competition Act provides that associative agreements, consortia or joint ventures are not considered by the Competition Act as concentration acts requiring notification if their purpose is to participate in direct or indirect public administration tenders or in contracts arising from them.
If a transaction has jurisdictional nexus to Brazil and qualifies as a concentration act, it will trigger a merger control requirement in Brazil if its parties and respective economic groups meet the dual turnover thresholds provided by the Competition Act:
- one company or group of companies registered gross sales revenues or total volume of business5 equal to or greater than 750 million reais, in Brazil, in the year preceding the transaction; and
- at least another company or group of companies involved in the transaction registered gross sales revenues or total volume of business equal to or higher than 75 million reais, in Brazil, in the year preceding the transaction.
In this assessment, it is necessary to take into account not only the revenues registered by the companies directly involved in the transaction, but also the revenues registered by all companies that could be considered part of their respective economic groups, as per the definition of economic group provided by CADE's regulations.6
Under the Competition Act, CADE may request the submission of any transactions that do not meet the thresholds for merger control review within one year of closing. This risk is more significant in transactions that result in significant horizontal overlaps or vertical integration. CADE has used this power in exceptional circumstances only.
iii New statutes, regulations and guidelines
In 2019, CADE issued a new regulation governing the procedures to investigate transactions that may have met the turnover thresholds, but have not been submitted for merger control approval, as well as transactions that have not met the turnover thresholds, but may raise competition concerns and be required to be submitted for approval within one year of closing.
In March 2020, CADE approved an amendment to its internal regulations to provide for the possibility of holding live public virtual judgment sessions while social distancing restrictions are imposed by local authorities as a result of the covid-19 pandemic to enable CADE's Tribunal to continue to decide on cases.
In April 2020, the Brazilian Congress approved a bill of law exempting cooperation agreements such as joint ventures, associative agreements and consortiums between competitors from mandatory notification to CADE where merger control requirements may provide an obstacle for collaboration that may be necessary for preventing and combating the covid-19 pandemic and its effects in the economy. This exemption applies to agreements executed between 20 March 2020 and 30 October 2020 (or while the state of public emergency due to the pandemic lasts). Nevertheless, CADE may require the post-closing submission of these transactions for merger control review and impose remedies or even order their unwinding if it concludes that they raised anticompetitive concerns that could not be justified by the efforts to prevent and fight the covid-19 pandemic. At the time of writing, this bill of law had not yet been sanctioned by the President and, therefore, is not yet in effect.
II YEAR IN REVIEW
2019 was a challenging year for CADE. For almost three months, CADE's Administrative Tribunal did not have the minimum quorum to decide cases because the Federal Senate did not approve the individuals nominated by the President to take office as CADE's commissioners. Therefore, during this period, all legal deadlines were suspended. Transactions approved by the Superintendent-General could not be closed and transactions pending decision from CADE's Tribunal could not be decided. The quorum was re-established in October 2018, and CADE was able to resume its normal activities.
Despite these difficulties, CADE continued to impress with its fast review of merger notifications, with an average review time for cases eligible for the fast-track procedure of approximately 17 days in 2019. Transactions reviewed under the regular procedure were cleared within an average of approximately 90 days.7
In 2019, 442 concentration acts were submitted to CADE for approval and the authority decided on 433 cases. The majority (406) were approved unconditionally, and only five were approved subject to remedies. The other 22 transactions were either withdrawn by the parties or declined to be reviewed by CADE for not triggering a merger filing requirement under the Competition Act.8
Following the trends of previous years, CADE continued to subject merger cases to substantial scrutiny and opposition, even blocking high-profile mergers. Competition assessment has become more complex and sophisticated as a result of CADE's accumulated experience and knowledge and of the increasing challenges and contributions by third parties.
CADE reviewed some high-profile merger cases in 2019, including transactions approved subject to sophisticated remedy solutions (including structural and behavioural remedies), most of which resulted from merger control agreements negotiated between the parties and CADE. Some of the main cases decided in 2019 and in the early months of 2020 are briefly described below.
One of the most important cases decided in 2019 was the acquisition of 21st Century Fox by The Walt Disney Company, which was initially approved subject to structural remedies in February 2019. The approval of the transaction was conditioned to the divestment of the Fox Sports channels, among other measures in a merger control agreement negotiated by the parties. CADE concluded that the transaction raised competition concerns in the market of cable sports channels, which included ESPN (The Walt Disney Company) and Fox Sports (21st Century Fox). In CADE's view, the transaction would substantially increase concentration in the cable sports channel market in Brazil and could have the potential to decrease the quality and diversity of available sports content, as well as increasing pricing for consumers.
In November 2019, CADE decided that the acquisition of 21st Century Fox by The Walt Disney Company would be reviewed due to the non-compliance with the merger control agreement due to the lack of viable potential buyers. In April 2020, CADE reviewed the merger control agreement to allow Disney's acquisition of the Fox Sports channel, replacing the structural remedies with behavioural ones to prevent anticompetitive discriminatory practices and secure diversity in the sports content available to Brazilian consumers.
In April 2019, CADE approved the merger between Bemis and Amcor in the international and national market for plastic containers. Although the merger created a virtual monopoly in the cold-form blister foil market, CADE's Administrative Tribunal cleared the transaction without restrictions. According to CADE, Amcor's market share had been steadily decreasing over recent years, and there was evidence that new companies were entering the national market and that imports were feasible. In April 2019, CADE also approved the joint venture formed by GSK and Pfizer with conditions.9 In CADE's view, the joint venture would result in significant concentration in the national market for simple antacids that could raise competitive concerns.
In May 2019, CADE approved Notre Dame Intermédica's acquisition of Mediplan with restrictions.10 CADE identified possible risks to competition resulting from the verticalisation of healthcare operators with their own hospitals. The parties negotiated a merger control agreement with behavioural remedies to prevent discriminatory practices against competing healthcare operators or hospitals.
In December 2019, CADE's Administrative Tribunal approved the transaction between Prosegur and Transvip with remedies.11 CADE demonstrated concerns with the movement of acquisitions in the securities transportation market in recent years that, in its view, resulted in an increase in concentration and a non-organic growth pattern for companies in this sector. To mitigate these concerns, the parties negotiated a merger control agreement in which Prosegur committed to refrain from new acquisitions in the sector in Brazil for a three-year period.
In December 2019, CADE imposed a fine on IBM and Red Hat for closing their acquisition transaction before CADE's Tribunal had rendered its final decision. IBM and Red Hat filed the transaction with CADE in April 2019. The Superintendent-General decided on the unconditional approval of the merger in June 2019; however, days later, the Administrative Tribunal called the case for second review. Nevertheless, the Tribunal's activities were suspended due to the inability to meet the minimum quorum to decide cases. In July 2019, when the case was still pending a final decision by the Tribunal, the companies informed CADE that the transaction had closed. Because the transaction was closed before CADE's clearance, CADE imposed gun-jumping penalties on the parties in the amount of approximately 57 million reais. Because this was a global transaction that had already been cleared in other jurisdictions, it is assumed that the parties decided to run the risk of being penalised for gun-jumping rather than delay the closing of the deal.
In February 2020, CADE's Tribunal approved the acquisition of Tecnoguarda by Brink's in the securities transportation market. The parties to the transaction also negotiated a merger control agreement similar to that executed in December 2019 in the Prosegur/Transvip case, in which Brink's also committed to refrain from new acquisitions in the sector in Brazil for a three-year period.
While 2019 was a challenging year for CADE due to the inability to meet the minimum quorum, which caused the suspension of the Tribunal's activities, these difficulties seem unimportant in view of the new challenges presented by the covid-19 outbreak in 2020. Despite the social distancing restrictions, CADE has been able to continue its activities and the review of merger control cases at a pace surprisingly similar to normal times. CADE's officers continue to work in home offices, holding meetings using video and audio conferencing. CADE's Tribunal holds live public virtual judgment sessions enabling it to continue to decide on cases.
In May 2020, CADE held an extraordinary judgment session to authorise a collaboration agreement between competitors in the beverage and food products sectors. The agreement was executed between Ambev (Anheuser-Busch InBev), BRF, Aurora, Coca-Cola, Heineken, Mondelez, Nestlé and PepsiCo for the joint distribution of their products during the pandemic. The purpose of the agreement is to mitigate the effects of the crisis created by the covid-19 pandemic, which affected the supply of products to points of sale, particularly in more remote regions of Brazil. The agreement will only be in force during the crisis. CADE concluded that there were reasonable economic reasons to justify the agreement and that the parties had adopted precautions to prevent possible antitrust risks.
III THE MERGER CONTROL REGIME
i Timing of submission and gun-jumping
CADE's regulations provide that transactions should be notified, preferably after the signing of the formal agreement that binds the parties and, in all cases, before any act related to the transaction is implemented.12 There is no deadline for filing notifications, but the parties cannot close a transaction before CADE's final approval.
CADE's regulations also provide that transactions involving tender offers for the acquisition of shares that require notification may be submitted for approval from the date of their announcement, and do not depend on CADE's approval for completion. Nevertheless, the acquirer cannot exercise the political rights related to the interest acquired as a result of the tender offer until final approval by CADE.13 The same rules apply to hostile transactions involving tender offers, which must be submitted for approval before closing.
If the parties take any action considered a step or a form of implementation of the transaction before CADE's approval (gun-jumping), they may be subject to a fine ranging from 60 thousand reais to 60 million reais, and all acts undertaken for the implementation or closing of the transaction may be declared void. In addition, CADE may initiate an administrative proceeding to investigate possible pre-merger coordination or any other anticompetitive behaviour possibly derived from the transaction.
CADE's regulations require that the parties maintain their unchanged physical structures and competitive conditions until CADE renders a final decision, and states that no transfer of assets, no type of influence of one party over another and no exchange of competitively sensitive information that is not strictly necessary for the execution of the agreement that binds the parties will be allowed.14
ii Merger notification forms and review procedures
CADE's regulations provide for two types of notification forms and review procedures: a long form for cases not eligible for the fast-track procedure and a short form for cases eligible for the fast-track procedure.15
The short form requires the following information and documents:
- a brief description of the transaction;
- information on the notifying parties and their economic groups, including the gross revenues obtained by the parties with respect to each of their economic activities;
- information regarding the transaction;
- documentation encompassing all agreements related to the transaction and a list of all other documents that have been produced as a result of the transaction;
- a definition of and information on the relevant markets affected by the transaction; and
- information on the supply structure of the market in cases that may result in horizontal overlaps or vertical integration.
The long form requires more detailed and in-depth information in addition to the information required by the short form for markets with horizontal overlaps in which the parties will have combined market shares of 20 per cent or more, as well as for vertically related markets in which the parties will hold a market share of 30 per cent or more, such as:
- information on the relevant market, including distribution channels, conditions of entry and rivalry in the relevant markets, intellectual property, infrastructure, brand loyalty, estimate of market production and pricing strategy;
- information on demand structure;
- analysis of monopsony power;
- information on all overlapping products and identification and contact details for competitors, customers and suppliers in all overlapping product areas;
- information on customer preferences; and
- analysis of coordinated power.
The long form also requires the provision of internal company documents, such as market assessment studies, minutes of relevant body and committee meetings, ordinary course of business strategy and marketing reports and a business plan.
The parties may request confidential treatment for confidential documents and information, provided that they are not available to the public by other means, such as documents:
- relating to the transaction;
- containing details of the companies' economic and financial situation and revenus;
- containing company secrets;
- encompassing production process and industrial secrets, particularly in terms of the manufacturing processes and formulas for the manufacture of products;
- containing information on customers and suppliers; and
- relating to the date and value of the transaction and the method of payment.
CADE's horizontal mergers guidelines provide guidance to CADE's officers and companies on the best competition practices and the review procedures that may be adopted by CADE in the assessment of merger transactions, particularly horizontal mergers. These guidelines consolidate CADE's best practices and case law on merger review and contain details on the following: analysis; information sources; relevant market; concentration levels; unilateral effects; buying power; coordinated effects; efficiency gains; complementary and alternative methods; merger-related judicial recovery proceedings (failing firm situations); and non-competition provisions.
iii Statutory time periods
The Competition Act sets out statutory time periods for the review of transactions and a review period of 240 days from the date of notification for the issuance of a final administrative decision. This 240-day term may be extended by up to 90 days if the transactions require deeper analysis (maximum review period of up to 330 days). These periods of time cannot be suspended by the competition authorities or by the parties.16
CADE's regulations establish that if it does not render a final decision within the maximum review period set in the Competition Act, the transaction will be automatically approved.17 The timing of a decision will vary depending on whether a transaction is considered simple, non-simple or complex. Under existing regulations, certain transactions have limited potential to harm or restrict competition and, therefore, may be considered simple and may be eligible for a fast-track or summary procedure.
Transactions that are considered simple (i.e., in which the parties have combined market shares below 20 per cent in overlapping markets and market shares below 30 per cent in vertically related markets) are eligible for fast track, whereas transactions that are not considered simple require a longer notification form and will follow the ordinary procedure. The decision on whether a transaction will follow the fast-track procedure will be made on a discretionary basis by CADE. Certain non-simple transactions may be challenged by the SG and, if so, they will be ultimately decided by CADE's Tribunal.18
Although the regulations do not provide for intermediary periods for decisions on simple or less complex cases, according to publicly available information, CADE usually approves fast-track cases within 30 days of the date of submission. In non-simple cases, the average time of analysis varies between 60 and 120 days (and may ultimately reach 330 days in very complex cases).
The Competition Act and applicable regulations establish a time limit of 15 days in which third parties to transactions may request to be admitted as interested or intervenient parties in a merger control case. These third parties are required to demonstrate that they have legitimate interests that may be affected by the transaction under analysis.
Interested third parties admitted to the case can appeal an SG decision approving a transaction without restrictions to CADE's Administrative Tribunal. The Administrative Tribunal may also present an opposition to the SG's decision and request the transaction go to second review.
The time limit for appeals or request for a second review by the Tribunal is 15 days after publication of the SG's approval decision. After the elapsing of this period without any appeals or requests by the Tribunal, the approval decision becomes final and appealable.19
iv Provisional authorisation to close
The Competition Act states that CADE may provisionally authorise the closing of transactions before a final decision is rendered. Parties may seek a provisional authorisation to close a transaction when:
- there is no danger of irreparable harm to competition in the market;
- the measures for which authorisation is requested are fully reversible; and
- the parties are able to show imminent risk of substantial and irreversible financial losses for the target company (if provisional authorisation is not granted).
v Possible decisions and merger control agreements
When assessing a transaction submitted for approval, the SG may render a unilateral decision approving it without restrictions or challenge it before the Administrative Tribunal if it considers that the transaction cannot be approved or could be approved with restrictions (which may encompass structural or behavioural remedies).
Therefore, if the SG decides that the transaction cannot be approved unconditionally, it will forward the case to the Administrative Tribunal with its recommendations for a final decision. A transaction will also be ultimately decided by the Tribunal whenever the Tribunal disagrees with the SG's decision to clear a transaction or when an interested third party admitted to the case files an appeal against the SG's decision to approve a transaction. The Administrative Tribunal, in its turn, may fully approve or reject the transaction or approve it with remedies.
According to the Competition Act, CADE may impose remedies that include:
- the sale of assets or a group of assets that constitute a business activity;
- the spin-off of a company;
- the transfer of corporate control;
- accounting or legal segregation of a company's activities;
- compulsory licensing of intellectual property rights; or
- any other act or measure necessary to eliminate the possible anticompetitive effects in the affected markets.
In 2018, CADE published guidelines on remedies that consolidate the best practices and procedures adopted in the design, application and monitoring of remedies imposed by CADE or negotiated with the parties.
The parties to the transaction may negotiate a merger control agreement with CADE from the moment of the filing until 30 days after the SG has challenged the transaction before CADE's Tribunal.20 Merger control agreements are negotiated with the SG or the Reporting Commissioner at the Tribunal, but they must be ultimately approved by CADE's Administrative Tribunal.
IV OTHER STRATEGIC CONSIDERATIONS
Parties to transactions that require a merger control notification to CADE should be careful in taking any steps that could be viewed as gun-jumping or pre-merger coordination, as they may be subject to fines and to investigations for anticompetitive conduct. Considering that CADE may render a decision imposing remedies on transactions or prohibiting them, parties should identify antitrust risks from the outset of the negotiations and consider using contractual covenants that adequately allocate these risks among them.
CADE is open to pre-filing contacts in cases that are not eligible for the fast-track procedure, which may be very useful to validate how it would view the affected relevant markets and the information that would be necessary for the competition assessment of the transaction. The pre-filing procedures can also be useful to limit the scope of the information required in the long notification form, particularly in cases that, although not eligible for the fast-track procedure, do not raise significant competition concerns and would not require an in-depth review. Pre-filing contacts are strongly advisable in non-fast-track cases and may even expedite the review process by allowing the parties to submit a notification more aligned with CADE's expectations.
CADE may communicate and exchange non-confidential information with competition authorities from other jurisdictions. Therefore, it is important to ensure consistency in multi-jurisdictional merger filings.
CADE usually double checks the information presented by the parties with publicly available information (i.e., companies' websites and public reports and statements) and, in more complex cases, CADE may also undertake a market test to validate the information provided. The submission of false or misleading information to CADE may subject the parties to heavy fines, undermine the parties' credibility and derail a merger review process.
In exceptional situations of financial distress and risk of insolvency of the target company, the parties may request that CADE provide a provisional authorisation to close or, at least, to adopt certain measures to secure that the targets may continue to operate. Nevertheless, CADE may not be comfortable with granting this authorisation in transactions that may raise competition concerns and when the requested measures may not be reversible.
In transactions that may raise significant anticompetitive concerns in Brazil, negotiated solutions may present a less time-consuming path to obtain antitrust clearance and allow approval based on more reasonable and tailor-made remedies. The negotiation of merger control agreements in complex cases may allow the parties to design a solution together with CADE that may be enough to neutralise CADE's concerns and, at the same time, avoid the imposition of excessive remedies and burdens. Without the cooperation of the parties in designing a more suitable solution, CADE may adopt a more conservative approach and impose stricter remedies than necessary or even reject a transaction.
V OUTLOOK AND CONCLUSIONS
CADE continues to prove its ability to efficiently examine transactions under a pre-merger review system and to continuously improve the Brazilian merger control system, as demonstrated by the new regulations and procedural matters enacted in 2019.
CADE's merger review practices have grown more sophisticated in the past decade as a result of its accumulated experience, the increase of merger challenges by third parties and closer cooperation and exchange of best practices with authorities from other jurisdictions. In the past few years, CADE has been more rigorous in assessing mergers in general. Vertical mergers that, at another time, would not have faced many difficulties in being cleared, may now face stricter scrutiny by CADE.
Based on the profile of the new government, there is an expectation that the new members to take seat at CADE's Tribunal, appointed by the new government in 2019, may adopt a more pro-business approach in the review and approval of mergers and acquisitions. This expectation was confirmed in the 2020 review of the merger agreement executed in the Walt Disney/Fox case, in which CADE agreed to replace the previously imposed structural remedies with behavioural remedies.
The concerns that CADE may become over-influenced and pressured from a political perspective have grown in recent years. Nonetheless, CADE has developed solid institutional foundations inspired by best international practices in competition law enforcement and has continuously improved. Therefore, it is well positioned to successfully deal with all these challenges.
In 2020, the covid-19 pandemic presented unexpected and never imagined challenges for the entire society, including for CADE. Despite these unprecedented difficulties, CADE has proved to be able to continue to review and decide merger control cases during these times of crisis, with the use of technology, video and audio-conference meeting facilities and virtual judgment sessions to decide cases. CADE has also demonstrated that it is amenable to the challenges presented to companies by the pandemic and that it is open to adopting more flexible approaches based on reasonable justifications, as demonstrated in the recent approval of a collaboration agreement between big players in the food and beverage sectors to mitigate logistics difficulties in the distribution of products within Brazil during the pandemic.
1 Mariana Villela and Leonardo Maniglia Duarte are partners at Veirano Advogados.
2 Article 2 of the Competition Act sets out that, 'notwithstanding conventions and treaties to which Brazil is a signatory, this act shall apply to all practices carried out wholly or partially in Brazilian territory, or when such acts produce or are capable of producing effects in Brazilian territory'.
3 Article 90 of the Competition Act.
4 CADE Regulation No. 02/2012 (Articles 9 to 11) sets out de minimis rules to exempt from notification certain transactions involving the acquisition of a minority interest of capital stock or voting shares, by not considering them as concentration acts even if the notification thresholds are met.
5 CADE has not yet provided any indication on how it will interpret the meaning of 'volume of business' and how it should be calculated by applicants. In practice, CADE has been making reference solely to the revenue threshold and not to volume of business.
6 CADE Regulation No. 02/2012 (Article 4) states that the following entities will be considered as part of the same economic group for purposes of calculating the turnover thresholds: (1) companies that are under common control; and (2) companies in which any of the companies described in (1) have a direct or indirect participation of 20 per cent or more of the capital stock or voting shares. In the case of investment funds, the following entities will be considered part of the same economic group: (1) quota holders that hold a direct or indirect interest of 50 per cent or more of the quotas in the fund involved in the transaction (and their respective economic groups); and (2) companies controlled by the fund involved in the transaction and in which such fund holds a direct or indirect interest of 20 per cent or more of the capital stock or voting shares.
7 See CADE's 2019 Yearbook, available at www.cade.gov.br/acesso-a-informacao/publicacoes-institucionais/anuario-cade-2019.pdf.
9 Concentration Act No. 08700.001206/2019-90.
10 Concentration Act No. ۰۸۷۰۰.۰۰۵۷۰۵/۲۰۱۸-۷۵.
11 Concentration Act No. 08700.003244/2019-87.
12 Article 147 of CADE Regulation No. 20/2017.
13 Article 148 of CADE Regulation No. 20/2017. Under certain circumstances, CADE may authorise the exercise of such political rights if it is necessary to preserve the full value of the investment.
14 Article 147, Paragraph 2 of CADE Regulation No. 20/2017.
15 CADE Regulation No. 2/2012.
16 Article 88 of the Competition Act.
17 Article 173 of CADE Regulation No. 20/2017.
18 CADE's decisions are final at the administrative level, but the parties may challenge them before the Federal Courts of Law in Brazil.
19 Article 172 of CADE Regulation No. 20/2017.
20 Article 165 of CADE Regulation No. 20/2017.