CADE’s performance in 2009

Since its early days back in 1994, the Administrative Council of Economic Defense (CADE, acronym in Portuguese), the decision making body of the Brazilian Antitrust Authorities, has paying attention to its own performance. When Gesner de Oliveira was  CADE’s chair in the late 1990s, the disclosure of CADE’s figures made officials at the other branches of the Brazilian Antitrust Authorities uneasy – actually, in spite of the lack of resources for all the three branches, the disparities in performance were striking.

The 15th anniversary of a new CADE in 2009, empowered with administrative independence, was the excuse to many events and lectures. After the celebration is over, it may be interesting to have a look at CADE’s performance to know where the Brazilian Antitrust Authorities are today and where they can go.

In 2000, there were 823 new procedures and 678 were not decided in that year – only 663 were decided. The substantial workload resulted mostly (i) from the broad filing threasholds which made mandatory the merger review of many harmless mergers and acquisitions, as well as (ii) from  many antitrust investigation commenced without any evidence.

This scenario has changed over the last ten years. In spite of the changes in the filing thresholds, the growing economic activity in Brazil did not decrease substantially the number of mergers submitted to merger controls: in 2009, 548 new procedures (merger control and antitrust investigations) were commenced. Only 335 procedures were not decided. However, due to a more adequate screening, fewer antitrust investigations have been commenced.

Of course, there is a lot to be done. For instance, the lack of a team of experts has caused many problems for the institutional memory of the Brazilian Antitrust Authorities. This is also an indirect consequence of the fact thatCADE’s Commissioners are appointed for a 2 year term – the turnoever among CADE’s Commissioners is very high.

Furthermore, many important cases take too long to be decided. This applies to both merger control and antitrust investigations.

On the other hand, the growing efficiency in the analysis of the procedures has been used as an argument to favour the change in the merger control in Brazil – differently from most of countries, where merger controls is a precondition to the closing of the transaction, in Brazil the parties can close the transaction and only after to submit the transaction to merger clearance. Needless to say that the a posteriori merger control adversely impacts on the quality of the antitrust enforcement, mainly when the resulting merger may lead to higher market concentration.

Distribuídos: new procedures (including merger control and antitrust investigations).

Julgados: procedures which were decided (including merger control and antitrust investigations).

Estoque: procedures  (including merger control and antitrust investigations).
which were not decided by the end of the year.

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