After almost two months after its approval by the National Congress on the 5th October 2011, the Brazilian President Dilma Roussef enacted the new Antitrust Law (Lei n. 12.529/11) yesterday and its final version was published in today’s Official Gazette. As expected, some sections were vetoed – the justification can be read here.
As the vacatio legis will be of 180 days, there will be plenty of time to study its content. However, I have to mention one particular veto: article 64, which reads as follows:
«The noncompliance with the deadlines set in this Law causes the concentration acts to be automatically cleared».
Definitively, article 64 was a guarantee that all the merger review control would not take longer than 11 months. Now, the commitment of the authorities to clear the transaction swiftly will be essential for the success in the implementation of the pre-merger review process.
Indeed, I anticipate that transitional issues will give us food for tought. For instance, as the provision that allowed to request a derogation from the stand-still obligation has also been vetoed, I wonder whether the new stand-still rule would caught deals notified during the vacatio legis but still not implemented after the expiry of the 180th day. In other words, if you notify the deal in April 2012, can you still close the deal (e.g. transfer the shares) in July 2012 without a formal clearance decision from Brazilian authorities?
As regards the lack of automatic clearance upon expiry of the statutory review period, I doubt that it makes any real difference. It is like a doctor telling a pregnant mother that he will try to see her as soon as possible but, in any case, no later than 10 months after asking the appointment. Nonsense, babies arrive in nine months and most deals can only survive between three and six months (i.e. the so-called «long stop date»), 11 months is way too long with or without automatic clearance. Only complex deals can survive more than six months but there dynamics are quite different and automatic clearance is not a decisive factor.
Unless Brazilian authorities make a clear commitment to clear deals in less than 2-3 months, they will be burying themselves in mountains of paperwork. Instead of using scarce resources to investigate substantial issues, they will be quite busy receiving complaints and monitoring unnotified deals (sure many companies will take the risk rather than killing the deal), fining the few companies that are caught (crime sometimes does pay), and, more worryingly, responding to the hundreds of waiver requests that will be submitted along with every single notification (only sensible approach that applicants can take in the given circumstances).
It will be a vicious circle, due to additional work the authority will not have the resources to clear deals within a reasonable period, this will induce more companies to disregard Brazilian rules, which in turn will compel the authority to devote more and more resources to time-consuming enforcement action.
I wish them the best of luck but things do not look good right now.