New normative rulings in the context of the Brazilian Competition Policy System

  • - 15 October, 2012 - News

New normative rulings in the context of the Brazilian Competition Policy System

Gabriel Bicalho Carvalho (Intern from Public Law Department)

Since the Act No. 12,529/11 came into force, several ordinances and regulation decrees were issued in order to complement previous changes introduced in the legal context of competition in Brazil.

Such normative rulings – responsible for giving continuity to the innovation process dealt with by the above Act – gave applicability to the standards and guidelines set forth thereby.

In this sense, we detail below the main complementary aspects of the new antitrust and unfair competition system.

The first – and most significant – change was introduced by the joint ministerial ordinance No. 994/12, which provided for new limits for the concentration acts which shall be submitted to the obligatory appraisal of Administrative Council for Economic Defense – “CADE”.

Under the new guideline, a notice of a transaction must be filed with CADE when:

  1. a)      at least one of the merging parties has achieved group-wide revenues of a minimum of R$ 750 million (approx. US$ 370 million) in Brazil within the fiscal year prior to the transaction; and
  2. b)      the other party to the transaction has achieved group-wide revenues of R$ 75 million (approx. US$ 37 million) in Brazil.

The joint ministerial ordinance has changed the limits previously set forth as R$ 400 and R$ 30 million, respectively, which may lead to a reduction of notices filed with CADE.

Others complements to the main Act can be summarized as follows:

Ordinance n.°1/12 CADE: Approves CADES’s Internal Statute. Provides for a special and differential treatment for public offerings for share acquisitions. In contrast to the previous procedure, such operations will not depend on the prior approval of CADE.

Ordinance n.°2/12 CADE: Regulates pre-merger notices, implements the fast track merger review procedure, among other measures.

Ordinance n.°3/12 CADE: Lists certain branches of business activity that will be used as a parameter in the calculation of fines for anticompetitive practices. According to the new Act, the type of activity of the companies will affect the amount of the applicable fine (CADE may impose fines to the companies that ranged from 0,1% up to 20% of their respective total turnover).

Ordinance n.°4/12 CADE: Provides for recommendations for technical opinion submitted to CADE.

In the forthcoming months, new normative rulings are expected to exhaust the regulation of the Brazilian Competition Policy System inaugurated by Act No. 12.529/12, clarifying general aspects contained in the provisions of the Act.