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A brief report on the transition to the new antitrust regime in Brazil

1 julio, 2012

It took six months for the Brazilian Antitrust Authorities to do whatever necessary to assure a smooth transition from the old to the new antitrust regime. Some would say everything worked as actually planned, while other practitioners would not agree. Like it or not, the truth is that the transition is still taking place, because some services have not yet come back to its full operation.

The CADE “closed” for nearly one month, so that it could move into a new, modern building. 50 civil servants are being recruited and more 150 are expected to join in the next two years. These reinforcements should be more than enough to tackle the chronicle personnel shortage of the CADE.

Located far from the Ministry of Justice and Treasure, the new building can be seen as a symbol of the Super-CADE. Even though the institutional guarantees are all in place in the new legislation, at least from a psychological point of view it is good to stay away from those who may have to interfere with the independence.

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The institutional challenge for the Super-CADE is really impressive. To keep the recently conquered international reputation is not easy – the Global Competition Review maintained the CADE with its three-and-a-half-star rating. As the British magazine pointed out, “despite being caught up in the implementation of its new antitrust law, CADE’s enforcement programme and merger work remained consistent”.

Just to give an idea of the difficulties in the transition, 141 filings were submitted to the CADE from May 29 to May 20. Right after the new regime came into force, two filings were submitted under the new regime. The commissioners have admitted that their priority will be to clear all the submitted filings and only then, to pay attention to the antitrust enforcement. More important than the commissioners, the own Director General admitted that the priority will be given to the merger review, at least in the first six months.

Such a reaction is quite natural. After all, the dramatic change in the merger review process together with the inexperience with the pre-merger regime led to it to be the zero priority. This is particularly true, specially after the presidential veto on the automatic approval of merger cases had such a bad impact on the antitrust community’s perception about the duration of the merger review process. Even though a legal opinion by CADE’s Attorney Office, endorsed by CADE’s Board, stated that the maximum 240 to 330-day deadline remains valid, there is a great deal of uncertainty as to whether the CADE will be able to comply with the deadlines.

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