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CADE homologa resolução sobre Procedimento Administrativo para Apuração de Ato de Concentração - APAC

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Elapsed=00:00:00.0802739

7/2/2015 9:00 PM Demarest News

CADE issues new regulation on specific Administrative Proceedings to investigate Merger Control - APAC

On June 30, 2015, CADE published a new resolution (Resolution nº 13/2015) establishing procedural rules for the assessment of gun jumping conducts relating to transactions under CADE's scrutiny and to transactions that should have been submitted to CADE's review but were not. Gun jumping cases will be assessed by CADE under a specific procedure named APAC - Administrative Proceeding to investigate Merger Control.


In the event gun jumping is verified, the merits of CADE's decision may be suspended until a final decision on the APAC is issued. Gun jumping conducts subject the parties to fines that can range from BRL 60,000.00 (approximately USD20,000.00) to BRL 60 million (approximately USD20 million), in addition to the annulment of pre-merger coordination acts; and the opening of an administrative proceeding to investigate the parties’ behavior since the signing of the transaction agreement.


The APAC was also the proceeding chosen by CADE to request that companies submit transactions that originally were not subject to mandatory antitrust approval in Brazil. Companies requested by CADE to submit non-reportable transactions can appeal from CADE's request.


APACs can be initiated ex offício by the General Superintendent or upon the request of any member of CADE's Tribunal or third interested parties.


Finally, Resolution nº 13/2015 has reestablished the so called Reversibility Agreement (APRO), which was often used by CADE during the term of Brazil's former antitrust law to secure the reversibility of transactions under CADE's review. Since the establishment of Brazil's pre-merger control regime, APROs have become unnecessary. Now, with the introduction of the APACs dealing with situations in which there is still uncertainty regarding to the need of CADE's previous approval, the use of APROs may gain importance again as an instrument to preserve the competition and the effectiveness of the law.


The full content of CADE's Resolution nº 13/2015 is available at:

http://www.cade.gov.br/upload/RESOLU%C3%87%C3%83O%20N%C2%BA%2013.pdf


Demarest Advogados 

Mario Nogueira​ mnogueira@demarest.com.br ​+55 11 33​56-1519
​Bruno Drago bdrago@demarest.com.br ​+55 11 33​56-1776
​Paola Pugliese ppugliese@demarest.com.br ​+​55 11 3356-2084
​Milena Mundim ​mmundim@demarest.com.br ​+55 11 3356-2092
​Paula Salles ​pasalles@demarest.com.br​ ​+55 11 3356-2125
 


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