14 September 2016
In its last judgment session on August 31, 2016, the Administrative Council for Economic Defense (“CADE”) approved Resolution 16 (“Resolution No. 16/2016”) which established a deadline of thirty (30) days for the approval of merger filings based on summary proceedings by CADE’s General Superintendence.
The analysis of merger filings through the fast track (or summary) proceedings occur in simpler cases, with less potential for anticompetitive effects. Regardless of the applicable procedure (ordinary or summary proceedings), the limit for analysis of merger filings by CADE is two hundred forty (240) days, extendable for ninety (90) days in accordance with Article 88, §§ 2 and 9, of Law 12,529/2011.
Despite this deadline, merger filings based under fast track proceedings have consistently been analyzed by CADE in less than thirty (30) days, due to an informal commitment by the Authority.
Resolution No. 16/2016 has institutionalized said informal deadline for the evaluation of simpler transactions and has set a specific consequence for non-compliance: there must be an explicit justification by the Superintendence for the delay, as well as prioritization for the analysis of the merger filing – in accordance with the new §3 of the Article 7 of Resolution nº 02/2012. Notwithstanding, said delay does not imply tacit approval of the merger under review, what is only applicable when the 240-day deadline is not met under Article 88, of the Law 12.529/2011.
Therefore, Resolution No. 16/2016, which came into force as of its publication on Official Gazette on September 6, 2016, has regulated a practice which, even though already spontaneously utilized by CADE, is now explicitly provided for in a Resolution adopted by CADE’s Tribunal, thereby institutionalizing a speedier treatment for simple cases.