Normative Ruling No. 12, dated of March 11, 2015, issued by the Administrative Council for Economic Defense ("CADE"), came into force. This regulation governs the process of requesting clarifications before the Brazilian antitrust authorities, referred to in Article 9, paragraphs 4 and 5 of Law No. 12,529, dated November 30, 2011 ("Brazilian New Competition Law"). According to these new rules, requests for clarification may concern matters related to merger reviews, as well as to the legality of acts, contracts, corporate strategies or any other conduct, whether they have already been initiated or are still in the planning stages.
Requesting parties must provide CADE with the following information: (i) their professional information (name, address, etc.), proof of their legitimate interest and, if necessary for the understanding of the clarification, the personal information (name, address, etc.) of any other interested parties; (ii) details of the issue to be clarified; (iii) all documents necessary for the analysis; (iv) all legal provisions and CADE's case law related to the matter; and (v) in cases where the act or conduct has already taken place, the requesting party should include a statement affirming that the object of the clarification is not subject to any investigation or administrative proceeding — either concluded or still underway — by CADE.
The request for clarification will be dismissed without assessment if (i) it was filed by a third party not directly involved in the transaction or in the conduct which is up for clarification; (ii) it is related to practices that have already been deemed a violation of the economic order by CADE, or those which are currently under investigation by the antitrust authority; (iii) the analysis concerns facts beyond those described and proven in the request; (iv) it involves a merely hypothetical issue; (v) there is insufficient information for CADE to decide the matter properly; (vi) the issue is beyond CADE's jurisdiction or sphere of competence; and/or (vii) the request involves issues already provided for in normative rulings or CADE's precedents. CADE has a 120-day deadline to review clarification requests and its decision binds both the agency and the parties to the request for a period of five years, limited to the facts taken into consideration in the request for clarification. Nonetheless, CADE has the prerogative to change its judgment if new facts or information come to light, although any new interpretation will not be applied retroactively.
The instatement of this regulation is a positive step forward since it provides a means for businesses to have their questions answered regarding the new Brazilian Competition Law. Moreover, it allows for increased transparency, effectiveness and predictability in terms of CADE's activities. However, it remains to be seen if the standards – as to, for instance, the mandatory filing information and the prohibition of a "merely hypothetical consultation" – to be adopted by CADE in evaluating a request's admissibility, will not lessen the potential benefits to be achieved by this important mechanism.
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