I read that Chile’s Fiscalia Nacional Economica (FNE) challenged a completed merger for the first time. Completed on 11 November 2011, the relevant market is cinema’s chains. According to the information made available, the resulting concentration will lead to a monopoly in certain regions. Besides that, the entry barriers would be too high.
I was wondering whether such a move could be interpreted as a trend for other countries like Brazil. As reported previously by this blogger, the filing thresholds for the submission of mergers increased dramatically in Brazil, following a joint administrative rule by the Ministries of Treasure and Finance. The filing thresholds increased from R$ 30 million and R$ 400 million to R$ 75 million and R$ 750 million. Experts claim that the filing thresholds are far above the worldwide average and much higher for countries for a GDP similar to Brazil. Such a change may allow the creation of monopolies in regions or markets, which do not meet the filing thresholds.
On the other hand, just like in Chile, the new Brazilian Antitrust Law allows that mergers and acquisitions are challenged up to one year after its completion. From a policy perspective, a creative solution to deal with the high filing thresholds would be the CADE to become more active in challenging completed mergers. Is this the future? If this happens, there will be a great deal of legal uncertainty.
What if the parties to a transaction want to submit the transaction to be on the safe side? Even though this is theoretically possible, there are no rules about the voluntary submission of mergers – in other words, even after the case is dismissed for not falling within the filing thresholds, the CADE could challenge the merger up to one year after its completion.