19 March 2015
On March 11th 2015, the Brazilian Antitrust Authority, the Administrative Council for Economic Defense – CADE, passed a new resolution on the enquiry procedure stipulated under Law no 12.529/2011. The new regulation came into force on March, 17th, 2015, when it was published in the Brazilian Official Gazette.
According to the provisions of the new resolution, any entity or representative association of the corresponding sector can enquire the authority’s opinion on the enforcement of antitrust legislation regarding the hypotheses specified under the Law. By the same token, the enquiry can address the following topics: (i) interpretation of statutory provisions or CADE’s regulation concerning merger control proceedings in transactions or circumstances specifically defined, (ii) the legality of acts, contracts, corporate strategies or conducts of any kind initiated by the enquiring party; or (iii) the legality of acts, contracts, corporate strategies or conducts of any kind already conceived and planned, but not yet initiated.
The Enquiry will be automatically rejected when it does not meet the proposal requirements (like a request from a third party not directly involved on the matter analyzed when concerning practices investigated at the time along with CADE or which has already been deemed an infraction to the economic order; be necessary, for opinion sake, assumptions pertaining alien facts to those described and proved in the Enquiry or when it impedes an adequate response by CADE in light of the information provided), or still when it involves a purely hypothetical matter, issues outside CADE’s jurisdiction or matters already settled by a normative act or CADE resolution.
The Enquiry will have to be assessed within 120 (one hundred and twenty) days from its filling to a Report Advisor. Its response, in turn, will be binding for 5 (five) years to the Court and the enquirers. Still, it can result in the issuance of abridgments when based on divergent precedents or in the commencement of administrative proceedings for the imposition of penalties when dealing with the legality of acts.
Law no 8884/94, the one preceding Law no 12529/2011, and corresponding regulations had provisions regulating the enquiry procedure. Although they were maintained after the enactment of Law no 12529/2011, the corresponding regulations issued up to now, including CADE bylaws, did not mention it.