On 11 March 2015, Brazil's competition authority, CADE – Conselho Administrativo de Defesa Econômica, published Resolution 12/2015, establishing rules on the procedure for submitting consultations to the authority. The rules are part of CADE's recent efforts to provide greater certainty and foreseeability to the market.
According to Resolution 12/2015, consultations can be submitted on matters related to mergers and acquisitions, abuse of dominance, and anti-competitive conduct, as long as they deal with concrete, specific facts, and the consultation is submitted by a party directly involved in the matter or by relevant sector associations. CADE will not accept consultations on conduct that is already under investigation, although it is not clear whether conduct that is being investigated in other countries can be submitted for consultation in Brazil.
In the case of potentially anti-competitive conduct, consultations can contemplate commercial strategies or conduct that has already been implemented, or strategies and conduct that are in the planning stages. CADE has the prerogative, however, of converting a consultation into an investigation if it concludes that the conduct contemplated in the consultation is unlawful, which certainly raises concerns as to how useful the consultation process is for commercial practices already in place.
Consultations are examined and decided directly by CADE's Administrative Tribunal, unlike merger review and anti-competitive conduct proceedings, which are reviewed first by the Office of CADE's Superintendent-General.
Under the terms of the new resolution, CADE's decisions in consultations are binding on the competition authority and the consulting parties for up to five years, although CADE has the power to revise its understanding of the law at any time and order cessation of conduct that it believes is contrary to law. If CADE does change its position, however, it cannot impose penalties on the consulting parties or third parties that followed the original interpretation of the law set out in the decision on the consultation.
How successful Resolution 12/2015 will be in providing greater certainty and foreseeability to the market depends on CADE's commitment to issuing clear, binding decisions that can serve as effective guidance in other cases. Otherwise, the consultation process will likely be as little used as it is today.
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