9 September 2016

Cade To Have 30 Days Deadline To Review Fast Track Deals

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On September 6th, 2016, Resolution No. 16 of the Administrative Council for Economic Defense –CADE – was published in the Official Gazette.
Brazil Antitrust/Competition Law
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On September 6th, 2016, Resolution No. 16 of the Administrative Council for Economic Defense –CADE – was published in the Official Gazette. Such Resolution was issued to amend Resolution No. 2/2012, which provides for the notification of mergers and the so-called Fast-track Proceeding.

According to the new Resolution, the General Superintendence, CADE's lower unit responsible for analyzing and approving, or challenging mergers before CADE's Tribunal, must observe a 30-day deadline as of notification or its amendment to decide on the mergers framed in the Fast-track Proceeding (applicable to the analysis of simple operations, less potentially harmful to competition).

Any breach of the 30-day deadline must be justified by the Superintendent-General, by a decision addressed to the Tribunal, providing reasons for the delay. Moreover, that decision shall turn the review into a priority review and determine the immediate publication of the notice on the transaction, if it has not been published yet, except in cases of amendment. According to the Antitrust Law (Law 12.529 / 2011), the maximum term of merger review is of 240 days, subject to additional 90-day extension.

The 30-daydeadline stated by Resolution No. 16 refers only to the decision of the General Superintendence, not including the period of 15 days after publication of the approval decision, within which third partiesor CADE's Tribunal can challenge the General Superintendence's clearance opinion. Therefore, after the clearance opinion by the General Superintendence, the parties must still wait for the expiry of the additional 15-day period for only then close the deal.

The new rule(that was already being the practice by CADE) now turns into an obligation the 30 days deadline.

Finally, Resolution No. 16 entered into force immediately.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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